California v. Texas ( 2021 )

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(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CALIFORNIA ET AL. v. TEXAS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 19–840. Argued November 10, 2020—Decided June 17, 2021*
The Patient Protection and Affordable Care Act as enacted in 2010 re-
quired most Americans to obtain minimum essential health insurance
coverage and imposed a monetary penalty upon most individuals who
failed to do so. Amendments to the Act in 2017 effectively nullified the
penalty by setting its amount to $0. Subsequently, Texas (along with
over a dozen States and two individuals) brought suit against federal
officials, claiming that without the penalty the Act’s minimum essen-
tial coverage provision, codified at 26 U. S. C. §5000A(a), is unconsti-
tutional. They sought a declaration that the provision is unconstitu-
tional, a finding that the rest of the Act is not severable from
§5000A(a), and an injunction against enforcement of the rest of the
Act. The District Court determined that the individual plaintiffs had
standing. It also found §5000A(a) both unconstitutional and not sev-
erable from the rest of the Act. The Fifth Circuit agreed as to the ex-
istence of standing and the unconstitutionality of §5000A(a), but con-
cluded that the District Court’s severability analysis provided
insufficient justification to strike down the entire Act. Petitioner Cal-
ifornia and other States intervened to defend the Act’s constitutional-
ity and to seek further review.
Held: Plaintiffs do not have standing to challenge §5000A(a)’s minimum
essential coverage provision because they have not shown a past or
future injury fairly traceable to defendants’ conduct enforcing the spe-
cific statutory provision they attack as unconstitutional. Pp. 4–16.
(a) The Constitution gives federal courts the power to adjudicate
——————
* Together with No. 19–1019, Texas et al. v. California et al., also on
certiorari to the same court.
2 CALIFORNIA v. TEXAS
Syllabus
only genuine “Cases” and “Controversies.” Art. III, §2. To have stand-
ing, a plaintiff must “allege personal injury fairly traceable to the de-
fendant’s allegedly unlawful conduct and likely to be redressed by the
requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342.
No plaintiff has shown such an injury “fairly traceable” to the “alleg-
edly unlawful conduct” challenged here. Pp. 4–5.
(b) The two individual plaintiffs claim a particularized individual
harm in the form of past and future payments necessary to carry the
minimum essential coverage that §5000A(a) requires. Assuming this
pocketbook injury satisfies the injury element of Article III standing,
it is not “fairly traceable” to any “allegedly unlawful conduct” of which
the plaintiffs complain, Allen v. Wright, 468 U. S. 737, 751. Without a
penalty for noncompliance, §5000A(a) is unenforceable. The individu-
als have not shown that any kind of Government action or conduct has
caused or will cause the injury they attribute to §5000A(a). The
Court’s cases have consistently spoken of the need to assert an injury
that is the result of a statute’s actual or threatened enforcement,
whether today or in the future. See, e.g., Babbitt v. Farm Workers, 442
U. S. 289, 298. Here, there is only the statute’s textually unenforcea-
ble language.
Unenforceable statutory language alone is not sufficient to establish
standing, as the redressability requirement makes clear. Whether an
injury is redressable depends on the relationship between “the judicial
relief requested” and the “injury” suffered. Allen, 468 U. S. at 753, n.
19. The only relief sought regarding the minimum essential coverage
provision is declaratory relief, namely, a judicial statement that the
provision challenged is unconstitutional. But just like suits for every
other type of remedy, declaratory-judgment actions must satisfy Arti-
cle III’s case-or-controversy requirement. See MedImmune, Inc. v.
Genentech, Inc., 549 U. S. 118, 126–127. Article III standing requires
identification of a remedy that will redress the individual plaintiffs’
injuries. Id., at 127. No such remedy exists here. To find standing to
attack an unenforceable statutory provision would allow a federal
court to issue what would amount to an advisory opinion without the
possibility of an Article III remedy. Article III guards against federal
courts assuming this kind of jurisdiction. See Carney v. Adams, 592
U. S. ___, ___ . The Court also declines to consider Federal respond-
ents’ novel alternative theory of standing first raised in its merits brief
on behalf the individuals, as well as the dissent’s novel theory on be-
half of the states, neither of which was directly argued by plaintiffs
below nor presented at the certiorari stage. Pp. 5–10.
(c) Texas and the other state plaintiffs have similarly failed to show
that the pocketbook injuries they allege are traceable to the Govern-
ment’s allegedly unlawful conduct. DaimlerChrysler Corp. v. Cuno,
Cite as: 593 U. S. ____ (2021) 3
Syllabus
547 U. S. 332, 342. They allege two forms of injury: one indirect, one
direct.
(1) The state plaintiffs allege indirect injury in the form of in-
creased costs to run state-operated medical insurance programs. They
say the minimum essential coverage provision has caused more state
residents to enroll in the programs. The States, like the individual
plaintiffs, have failed to show how that alleged harm is traceable to
the Government’s actual or possible action in enforcing §5000A(a), so
they lack Article III standing as a matter of law. But the States have
also not shown that the challenged minimum essential coverage provi-
sion, without any prospect of penalty, will injure them by leading more
individuals to enroll in these programs. Where a standing theory rests
on speculation about the decision of an independent third party (here
an individual’s decision to enroll in a program like Medicaid), the
plaintiff must show at the least “that third parties will likely react in
predictable ways.” Department of Commerce v. New York, 588 U. S.
___, ___. Neither logic nor evidence suggests that an unenforceable
mandate will cause state residents to enroll in valuable benefits pro-
grams that they would otherwise forgo. It would require far stronger
evidence than the States have offered here to support their counterin-
tuitive theory of standing, which rests on a “highly attenuated chain
of possibilities.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 410–411.
Pp. 11–14.
(2) The state plaintiffs also claim a direct injury resulting from a
variety of increased administrative and related expenses allegedly re-
quired by §5000A(a)’s minimum essential coverage provision. But
other provisions of the Act, not the minimum essential coverage provi-
sion, impose these requirements. These provisions are enforced with-
out reference to §5000A(a). See 26 U. S. C. §§6055, 6056. A conclusion
that the minimum essential coverage requirement is unconstitutional
would not show that enforcement of these other provisions violates the
Constitution. The other asserted pocketbook injuries related to the Act
are similarly the result of enforcement of provisions of the Act that
operate independently of §5000A(a). No one claims these other provi-
sions violate the Constitution. The Government’s conduct in question
is therefore not “fairly traceable” to enforcement of the “allegedly un-
lawful” provision of which the plaintiffs complain—§5000A(a). Allen,
468 U. S., at 751. Pp. 14–16.
945 F. 3d. 355, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and THOMAS, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined.
THOMAS, J., filed a concurring opinion. ALITO, J., filed a dissenting opin-
ion, in which GORSUCH, J., joined.
Cite as: 593 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–840 and 19–1019
_________________
CALIFORNIA, ET AL., PETITIONERS
19–840 v.
TEXAS, ET AL.
TEXAS, ET AL., PETITIONERS
19–1019 v.
CALIFORNIA, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 17, 2021]
JUSTICE BREYER delivered the opinion of the Court.
As originally enacted in 2010, the Patient Protection and
Affordable Care Act required most Americans to obtain
minimum essential health insurance coverage. The Act
also imposed a monetary penalty, scaled according to in-
come, upon individuals who failed to do so. In 2017, Con-
gress effectively nullified the penalty by setting its amount
at $0. See Tax Cuts and Jobs Act of 2017, Pub. L. 115–97,
§11081, 131 Stat. 2092 (codified in 26 U. S. C. §5000A(c)).
Texas and 17 other States brought this lawsuit against
the United States and federal officials. They were later
joined by two individuals (Neill Hurley and John Nantz).
The plaintiffs claim that without the penalty the Act’s min-
imum essential coverage requirement is unconstitutional.
Specifically, they say neither the Commerce Clause nor the
2 CALIFORNIA v. TEXAS
Opinion of the Court
Tax Clause (nor any other enumerated power) grants Con-
gress the power to enact it. See U. S. Const., Art. I, §8.
They also argue that the minimum essential coverage re-
quirement is not severable from the rest of the Act. Hence,
they believe the Act as a whole is invalid. We do not reach
these questions of the Act’s validity, however, for Texas and
the other plaintiffs in this suit lack the standing necessary
to raise them.
I
A
We begin by describing the provision of the Act that the
plaintiffs attack as unconstitutional. The Act says in rele-
vant part:
“(a) Requirement to maintain minimum essen-
tial coverage
“An applicable individual shall . . . ensure that the
individual, and any dependent . . . who is an applicable
individual, is covered under minimum essential cover-
age . . . .
“(b) Shared responsibility payment
“(1) In general
“If a taxpayer who is an applicable individual . . .
fails to meet the requirement of subsection (a) . . . there
is hereby imposed on the taxpayer a penalty . . . in the
amount determined under subsection (c).
“(2) Inclusion with return
“Any penalty imposed by this section . . . shall be in-
cluded with a taxpayer’s return . . . for the taxable
year . . . .” 26 U. S. C. §5000A.
The Act defines “applicable individual” to include all tax-
payers who do not fall within a set of exemptions. See
§5000A(d). As first enacted, the Act set forth a schedule of
penalties applicable to those who failed to meet its mini-
mum essential coverage requirement. See §5000A(c)
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
(2012). The penalties varied with a taxpayer’s income and
exempted, among others, persons whose annual incomes
fell below the federal income tax filing threshold. See
§5000A(e) (2012). And the Act required that those subject
to a penalty include it with their annual tax return. See
§5000A(b)(2) (2012). In 2017, Congress amended the Act by
setting the amount of the penalty in each category in
§5000A(c) to “$0,” effective beginning tax year 2019. See
§11081, 131 Stat. 2092.
Before Congress amended the Act, the Internal Revenue
Service (IRS) had implemented §5000A(b) by requiring in-
dividual taxpayers to report with their federal income tax
return whether they carried minimum essential coverage
(or could claim an exemption). After Congress amended the
Act, the IRS made clear that the statute no longer requires
taxpayers to report whether they do, or do not, maintain
that coverage. See IRS, Publication 5187, Tax Year 2019,
p. 5 (“Form 1040 . . . will not have the ‘full-year health care
coverage or exempt’ box and Form 8965, Health Coverage
Exemptions, will no longer be used as the shared responsi-
bility payment is reduced to zero”).
B
In 2018, Texas and more than a dozen other States (state
plaintiffs) brought this lawsuit against the Secretary of
Health and Human Services and the Commissioner of In-
ternal Revenue, among others. App. 12, 34. They sought a
declaration that §5000A(a)’s minimum essential coverage
provision is unconstitutional, a finding that the rest of the
Act is not severable from §5000A(a), and an injunction
against the rest of the Act’s enforcement. Id., at 61–63.
Hurley and Nantz (individual plaintiffs) soon joined them.
Although nominally defendants to the suit, the United
States took the side of the plaintiffs. See Brief for Federal
Respondents 12–13 (arguing that the Act is unconstitu-
tional). Therefore California, along with 15 other States
4 CALIFORNIA v. TEXAS
Opinion of the Court
and the District of Columbia (state intervenors), intervened
in order to defend the Act’s constitutionality, see App. 12–
13, as did the U. S. House of Representatives at the appel-
late stage, see id., at 3.
After taking evidence, the District Court found that the
individual plaintiffs had standing to challenge the constitu-
tionality of the minimum essential coverage provision,
§5000A(a). See Texas v. United States, 340 F. Supp. 3d 579,
593–595 (ND Tex. 2018). The court held that the minimum
essential coverage provision is unconstitutional and not
severable from the rest of the Act. It granted relief in the
form of a declaration stating just that. Id., at 595–619. It
then stayed its judgment pending appeal. See Texas v.
United States, 352 F. Supp. 3d 665 (ND Tex. 2018).
On appeal, a panel majority agreed with the District
Court that the plaintiffs had standing and that the mini-
mum essential coverage provision was unconstitutional.
See Texas v. United States, 945 F. 3d 355, 377–393 (CA5
2019). It found that the District Court’s severability anal-
ysis, however, was “incomplete.” Id., at 400. It wrote that
“[m]ore [wa]s needed to justify” the District Court’s order
striking down the entire Act. Id., at 401. And it remanded
the case for further proceedings. Id., at 402–403.
The state intervenors, defending the Act, asked us to re-
view the lower court decision. We granted their petition for
certiorari.
II
We proceed no further than standing. The Constitution
gives federal courts the power to adjudicate only genuine
“Cases” and “Controversies.” Art. III, §2. That power in-
cludes the requirement that litigants have standing. A
plaintiff has standing only if he can “allege personal injury
fairly traceable to the defendant’s allegedly unlawful con-
duct and likely to be redressed by the requested relief.”
DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342 (2006)
Cite as: 593 U. S. ____ (2021) 5
Opinion of the Court
(internal quotation marks omitted); see also Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 560–561 (1992). Neither
the individual nor the state plaintiffs have shown that the
injury they will suffer or have suffered is “fairly traceable”
to the “allegedly unlawful conduct” of which they complain.
A
We begin with the two individual plaintiffs. They claim
a particularized individual harm in the form of payments
they have made and will make each month to carry the min-
imum essential coverage that §5000A(a) requires. The in-
dividual plaintiffs point to the statutory language, which,
they say, commands them to buy health insurance. Brief
for Respondent-Cross Petitioner Hurley et al. 19–20. But
even if we assume that this pocketbook injury satisfies the
injury element of Article III standing, see Whitmore v. Ar-
kansas, 495 U. S. 149, 155 (1990), the plaintiffs neverthe-
less fail to satisfy the traceability requirement.
Their problem lies in the fact that the statutory provision,
while it tells them to obtain that coverage, has no means of
enforcement. With the penalty zeroed out, the IRS can no
longer seek a penalty from those who fail to comply. See 26
U. S. C. §5000A(g) (setting out IRS enforcement only of the
taxpayer’s failure to pay the penalty, not of the taxpayer’s
failure to maintain minimum essential coverage). Because
of this, there is no possible Government action that is caus-
ally connected to the plaintiffs’ injury—the costs of purchas-
ing health insurance. Or to put the matter conversely, that
injury is not “fairly traceable” to any “allegedly unlawful
conduct” of which the plaintiffs complain. Allen v. Wright,
468 U. S. 737, 751 (1984). They have not pointed to any
way in which the defendants, the Commissioner of Internal
Revenue and the Secretary of Health and Human Services,
will act to enforce §5000A(a). They have not shown how any
other federal employees could do so either. In a word, they
6 CALIFORNIA v. TEXAS
Opinion of the Court
have not shown that any kind of Government action or con-
duct has caused or will cause the injury they attribute to
§5000A(a).
The plaintiffs point to cases concerning the Act that they
believe support their standing. But all of those cases con-
cerned the Act when the provision was indisputably enforce-
able, because the penalty provision was still in effect. See
Brief for Respondent-Cross Petitioner Hurley et al. 22 (cit-
ing Florida ex rel. Atty. Gen. v. United States Dept. of Health
and Human Servs., 648 F. 3d 1235, 1243 (CA11 2011);
Thomas More Law Center v. Obama, 651 F. 3d 529, 535
(CA6 2011); Virginia ex rel. Cuccinelli v. Sebelius, 656 F. 3d
253, 266–268 (CA4 2011)); cf. National Federation of Inde-
pendent Business v. Sebelius, 567 U. S. 519 (2012) (as-
sessing the constitutionality of the Act with the penalty pro-
vision). These cases therefore tell us nothing about how the
statute is enforced, or could be enforced, today.
It is consequently not surprising that the plaintiffs can-
not point to cases that support them. To the contrary, our
cases have consistently spoken of the need to assert an in-
jury that is the result of a statute’s actual or threatened en-
forcement, whether today or in the future. See, e.g., Babbitt
v. Farm Workers, 442 U. S. 289, 298 (1979) (“A plaintiff who
challenges a statute must demonstrate a realistic danger of
sustaining a direct injury as a result of the statute’s opera-
tion or enforcement” (emphasis added)); Virginia v. Ameri-
can Booksellers Assn., Inc., 484 U. S. 383, 392 (1988) (re-
quiring “threatened or actual injury resulting from the
putatively illegal action” (internal quotation marks omit-
ted)). In the absence of contemporary enforcement, we have
said that a plaintiff claiming standing must show that the
likelihood of future enforcement is “substantial.” Susan B.
Anthony List v. Driehaus, 573 U. S. 149, 164 (2014); see also
Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (“The
party who invokes the power [of Article III courts] must be
able to show, not only that the statute is invalid, but that
Cite as: 593 U. S. ____ (2021) 7
Opinion of the Court
he has sustained or is immediately in danger of sustaining
some direct injury as the result of its enforcement”).
The plaintiffs point out that these and other precedents
concern injuries anticipated in the future from a statute’s
later enforcement. Here, the plaintiffs say, they have al-
ready suffered a pocketbook injury, for they have already
bought health insurance. They also emphasize the Court’s
statement in Lujan that, when a plaintiff is the “ ‘object’ ” of
a challenged Government action, “ ‘there is ordinarily little
question that the action . . . has caused him injury, and that
a judgment preventing . . . the action will redress it.’ ” Brief
for Respondent-Cross Petitioner Hurley et al. 18 (quoting
Lujan, 504 U. S., at 561–562). But critically, unlike Lujan,
here no unlawful Government action “fairly traceable” to
§5000A(a) caused the plaintiffs’ pocketbook harm. Here,
there is no action—actual or threatened—whatsoever.
There is only the statute’s textually unenforceable lan-
guage.
To consider the matter from the point of view of another
standing requirement, namely, redressability, makes clear
that the statutory language alone is not sufficient. To de-
termine whether an injury is redressable, a court will con-
sider the relationship between “the judicial relief re-
quested” and the “injury” suffered. Allen, 468 U. S., at 753,
n. 19. The plaintiffs here sought injunctive relief and a de-
claratory judgment. The injunctive relief, however, con-
cerned the Act’s other provisions that they say are insever-
able from the minimum essential coverage requirement.
The relief they sought in respect to the only provision they
attack as unconstitutional—the minimum essential cover-
age provision—is declaratory relief, namely, a judicial
statement that the provision they attacked is unconstitu-
tional. See App. 61–63 (“Count One: Declaratory Judgment
That the Individual Mandate of the ACA Exceeds Con-
gress’s Article I Constitutional Enumerated Powers” (bold-
face deleted)); 340 F. Supp. 3d, at 619 (granting declaratory
8 CALIFORNIA v. TEXAS
Opinion of the Court
judgment on count I as to §5000A(a)); 352 F. Supp. 3d, at
690 (severing and entering partial final judgment on count
I).
Remedies, however, ordinarily “operate with respect to
specific parties.” Murphy v. National Collegiate Athletic
Assn., 584 U. S. ___, ___ (2018) (THOMAS, J., concurring)
(slip op., at 3) (internal quotation marks omitted). In the
absence of any specific party, they do not simply operate “on
legal rules in the abstract.” Ibid. (internal quotation marks
omitted); see also Mellon, 262 U. S., at 488 (“If a case for
preventive relief be presented, the court enjoins, in effect,
not the execution of the statute, but the acts of the official,
the statute notwithstanding”).
This suit makes clear why that is so. The Declaratory
Judgment Act, 28 U. S. C. §2201, alone does not provide a
court with jurisdiction. See Skelly Oil Co. v. Phillips Petro-
leum Co., 339 U. S. 667, 671–672 (1950); R. Fallon, J. Man-
ning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The
Federal Courts and the Federal System 841 (7th ed. 2015)
(that Act does “not confe[r ] jurisdiction over declaratory ac-
tions when the underlying dispute could not otherwise be
heard in federal court”); see also Poe v. Ullman, 367 U. S.
497, 506 (1961) (“[T]he declaratory judgment device does
not . . . permit litigants to invoke the power of this Court to
obtain constitutional rulings in advance of necessity”). In-
stead, just like suits for every other type of remedy, declar-
atory-judgment actions must satisfy Article III’s case-or-
controversy requirement. See MedImmune, Inc. v. Genen-
tech, Inc., 549 U. S. 118, 126–127 (2007). At a minimum,
this means that the dispute must “be ‘real and substantial’
and ‘admit of specific relief through a decree of a conclusive
character, as distinguished from an opinion advising what
the law would be upon a hypothetical state of facts.’ ” Id.,
at 127 (alteration omitted). Thus, to satisfy Article III
standing, we must look elsewhere to find a remedy that will
redress the individual plaintiffs’ injuries.
Cite as: 593 U. S. ____ (2021) 9
Opinion of the Court
What is that relief? The plaintiffs did not obtain dam-
ages. Nor, as we just said, did the plaintiffs obtain an in-
junction in respect to the provision they attack as unconsti-
tutional. But, more than that: How could they have sought
any such injunction? The provision is unenforceable. There
is no one, and nothing, to enjoin. They cannot enjoin the
Secretary of Health and Human Services, because he has
no power to enforce §5000A(a) against them. And they do
not claim that they might enjoin Congress. In these circum-
stances, injunctive relief could amount to no more than a
declaration that the statutory provision they attack is un-
constitutional, i.e., a declaratory judgment. But once again,
that is the very kind of relief that cannot alone supply ju-
risdiction otherwise absent. See Nashville, C. & St. L. R.
Co. v. Wallace, 288 U. S. 249, 262 (1933) (inquiring whether
a suit for declaratory relief “would be justiciable in this
Court if presented in a suit for injunction”); Medtronic, Inc.
v. Mirowski Family Ventures, LLC, 571 U. S. 191, 197
(2014) (noting that a court looks to “the nature of the threat-
ened action in the absence of the declaratory judgment suit”
to determine whether jurisdiction exists).
The matter is not simply technical. To find standing here
to attack an unenforceable statutory provision would allow
a federal court to issue what would amount to “an advisory
opinion without the possibility of any judicial relief.” Los
Angeles v. Lyons, 461 U. S. 95, 129 (1983) (Marshall, J., dis-
senting); see also Steel Co. v. Citizens for Better Environ-
ment, 523 U. S. 83, 107 (1998) (to have standing, a plaintiff
must seek “an acceptable Article III remedy” that will “re-
dress a cognizable Article III injury”). It would threaten to
grant unelected judges a general authority to conduct over-
sight of decisions of the elected branches of Government.
See United States v. Richardson, 418 U. S. 166, 188 (1974)
(Powell, J., concurring). Article III guards against federal
courts assuming this kind of jurisdiction. See Carney v. Ad-
ams, 592 U. S. ___, ___ (2020) (slip op., at 4).
10 CALIFORNIA v. TEXAS
Opinion of the Court
Last, the federal respondents raised for the first time a
novel alternative theory of standing on behalf of the indi-
vidual plaintiffs in their merits brief. (The dissent, alone,
puts forward a similar novel theory on behalf of the state
plaintiffs.) That theory was not directly argued by the
plaintiffs in the courts below, see 945 F. 3d, at 385–386, and
n. 29, and was nowhere presented at the certiorari stage.
We accordingly decline to consider it. Cf. Adarand Con-
structors, Inc. v. Mineta, 534 U. S. 103, 109–110 (2001) (per
curiam); see also Cutter v. Wilkinson, 544 U. S. 709, 718,
n. 7 (2005).
B
Next, we turn to the state plaintiffs. We conclude that
Texas and the other state plaintiffs have similarly failed to
show that they have alleged an “injury fairly traceable to
the defendant’s allegedly unlawful conduct.” Cuno, 547
U. S., at 342 (internal quotation marks omitted; emphasis
added). They claim two kinds of pocketbook injuries. First,
they allege an indirect injury in the form of the increased
use of (and therefore cost to) state-operated medical insur-
ance programs. Second, they claim a direct injury resulting
from a variety of increased administrative and related ex-
penses required, they say, by the minimum essential cover-
age provision, along with other provisions of the Act that,
they add, are inextricably “ ‘interwoven’ ” with it. Brief for
Respondent-Cross Petitioner States 39.
1
First, the state plaintiffs claim that the minimum essen-
tial coverage provision has led state residents subject to it
to enroll in state-operated or state-sponsored insurance
programs such as Medicaid, see 42 U. S. C. §§1396–1396w,
the Children’s Health Insurance Program (CHIP), see
§1397aa, and health insurance programs for state employ-
ees. The state plaintiffs say they must pay a share of the
Cite as: 593 U. S. ____ (2021) 11
Opinion of the Court
costs of serving those new enrollees. As with the individual
plaintiffs, the States also have failed to show how this in-
jury is directly traceable to any actual or possible unlawful
Government conduct in enforcing §5000A(a). Cf. Clapper v.
Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013) (“plain-
tiffs bear the burden of . . . showing that the defendant’s ac-
tual action has caused the substantial risk of harm” (em-
phasis added)). That alone is enough to show that they, like
the individual plaintiffs, lack Article III standing.
But setting aside that pure issue of law, we need only ex-
amine the initial factual premise of their claim to uncover
another fatal weakness: The state plaintiffs have failed to
show that the challenged minimum essential coverage pro-
vision, without any prospect of penalty, will harm them by
leading more individuals to enroll in these programs.
We have said that, where a causal relation between in-
jury and challenged action depends upon the decision of an
independent third party (here an individual’s decision to
enroll in, say, Medicaid), “standing is not precluded, but it
is ordinarily ‘substantially more difficult’ to establish ”
Lujan, 504 U. S., at 562 (quoting Allen, 468 U. S., at 758);
see also Clapper, 568 U. S., at 414 (expressing “reluctance
to endorse standing theories that rest on speculation about
the decisions of independent actors”). To satisfy that bur-
den, the plaintiff must show at the least “that third parties
will likely react in predictable ways.” Department of Com-
merce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 10).
And, “at the summary judgment stage, such a party can no
longer rest on . . . mere allegations, but must set forth . . .
specific facts” that adequately support their contention.
Clapper, 568 U. S., at 411–412 (internal quotation marks
omitted). The state plaintiffs have not done so.
The programs to which the state plaintiffs point offer
their recipients many benefits that have nothing to do with
the minimum essential coverage provision of §5000A(a).
See, e.g., 42 U. S. C. §§1396o(a)–(b) (providing for no-cost
12 CALIFORNIA v. TEXAS
Opinion of the Court
Medicaid services furnished to children and pregnant
women, and for emergency services, hospice care, and
COVID–19 testing related services, among others, as well
as “nominal” charges for other individuals and services);
§1396o(c) (prohibiting Medicaid premiums for certain indi-
viduals with family income below 150 percent of the poverty
line and capping the premium at 10 percent of an eligible
individual’s family income above that line); 26 U. S. C.
§36B(c)(2)(C) (providing premium tax credits to make
health insurance plans, including employer-sponsored
plans, more affordable). Given these benefits, neither logic
nor intuition suggests that the presence of the minimum
essential coverage requirement would lead an individual to
enroll in one of those programs that its absence would lead
them to ignore. A penalty might have led some inertia-
bound individuals to enroll. But without a penalty, what
incentive could the provision provide?
The evidence that the state plaintiffs introduced in the
District Court does not show the contrary. That evidence
consists of 21 statements (from state officials) about how
new enrollees will increase the costs of state health insur-
ance programs, see App. 79–191, 339–363, along with one
statement taken from a 2017 Congressional Budget Office
(CBO) Report, see id., at 306–311.
Of the 21 statements, we have found only 4 that allege
that added state costs are attributable to the minimum es-
sential coverage requirement. And all four refer to that pro-
vision as it existed before Congress removed the penalty ef-
fective beginning tax year 2019, i.e., while a penalty still
existed to be enforced. See id., at 147–148 (decl. of Drew L.
Snyder) (noting “[e]fforts to avoid imposition of the fine
likely prompted more individuals to seek Medicaid from
[Mississippi]”); id., at 154 (decl. of Jennifer R. Tidball) (not-
ing that “Missouri residents were required to seek health
care coverage or pay a penalty to the federal government,”
and while “it is difficult to quantify the exact number of
Cite as: 593 U. S. ____ (2021) 13
Opinion of the Court
Medicaid enrollees that can be attributed to the [Act], dur-
ing the time period the [Act] was implemented the Medicaid
caseload increased”); id., at 341–342 (decl. of Blake Fulen-
wider) (observing that “Georgia residents were necessarily
required to secure health care coverage or pay a fine to the
federal government” and stating that “I believe that the in-
dividual mandate played a substantial role in the increase
in the number of Medicaid recipients since 2011”); id., at
139 (decl. of Mike Michael) (describing costs associated with
“[p]lan changes to cover individual mandate” spread “over
the years of 2013 to 2018”).
One other declaration refers to increased costs to the
States as employers, but it is vague as to the time period at
issue. See id., at 347–348 (decl. of Teresa MacCartney)
(“After the implementation of the [Act]’s individual man-
date, [Georgia’s Department of Community Health] experi-
enced a substantial increase in employee elections to obtain
health insurance”).
The state plaintiffs emphasize one further piece of evi-
dence, a CBO Report released in 2017. See id., at 306–311.
At that time, Congress was considering whether to repeal
the minimum essential coverage provision or, instead,
simply set the penalty for failure to obtain coverage to $0
for all taxpayers. The state plaintiffs focus on the para-
graph of the CBO Report that says that either way, the re-
sult would be “very similar,” for “only a small number of
people” would continue to enroll in health insurance solely
out of a “willingness to comply with the law.” Id., at 307.
And they argue that a “small number” is sufficient (by rais-
ing costs in furnishing Medicaid and CHIP) to provide them
with standing.
In our view, however, this predictive sentence without
more cannot show that the minimum essential coverage
provision was the cause of added enrollment to state health
plans. It does not explain, for example, who would buy in-
surance that they would not otherwise have bought. (For
14 CALIFORNIA v. TEXAS
Opinion of the Court
example, individuals who purchase insurance on individual
exchanges—like individual plaintiffs Hurley and Nantz—
do not increase the relevant costs to the States of furnishing
coverage.) Nor does it explain why they might do so. The
CBO statement does not adequately trace the necessary
connection between the provision without a penalty and
new enrollment in Medicaid and CHIP. We have found no
other significant evidence that might keep the CBO state-
ment company.
Unsurprisingly, the States have not demonstrated that
an unenforceable mandate will cause their residents to en-
roll in valuable benefits programs that they would other-
wise forgo. It would require far stronger evidence than the
States have offered here to support their counterintuitive
theory of standing, which rests on a “highly attenuated
chain of possibilities.” Clapper, 568 U. S., at 410–411; cf.
Department of Commerce, 588 U. S., at ___–___ (slip op., at
10–11) (District Court did not clearly err in finding that
plaintiffs had standing where plaintiffs relied not only on
“the predictable effect of Government action on the decisions
of third parties” but also on comprehensive studies, rather
than mere “speculation” (emphasis added)).
2
The state plaintiffs add that §5000A(a)’s minimum essen-
tial coverage provision also causes them to incur additional
costs directly. They point to the costs of providing benefi-
ciaries of state health plans with information about their
health insurance coverage, as well as the cost of furnishing
the IRS with that related information. See Brief for Re-
spondent/Cross-Petitioner States 20–22 (citing 26 U. S. C.
§§6055, 6056).
The problem with these claims, however, is that other
provisions of Act, not the minimum essential coverage pro-
vision, impose these other requirements. Nothing in the
text of these form provisions suggests that they would not
Cite as: 593 U. S. ____ (2021) 15
Opinion of the Court
operate without §5000A(a). See §§6055(b)(1)(B)(iii)(II),
(c)(1) (requiring certification as to whether the beneficiary’s
plan qualifies for cost-sharing or premium tax credits under
§36B); §§6056(b)(2)(B), (c)(1) (requiring certification as to
whether the plan qualifies as an “eligible employer-spon-
sored plan” that satisfies §4980H’s employer mandate).
These provisions refer to §5000A only to pick up a different
subsection’s definition of “minimum essential coverage.”
See 26 U. S. C. §§6055(e), 6056(b)(2)(B) (incorporating
§5000A(f)’s definition of “minimum essential coverage”). To
show that the minimum essential coverage requirement is
unconstitutional would not show that enforcement of any of
these other provisions violates the Constitution. The state
plaintiffs do not claim the contrary. The Government’s con-
duct in question is therefore not “fairly traceable” to en-
forcement of the “allegedly unlawful” provision of which the
plaintiffs complain—§5000A(a). Allen, 468 U. S., at 751.
The state plaintiffs complain of other pocketbook injuries.
They say, for example, that, in order to avoid a “substantial
tax penalty,” they will have to “offer their full-time employ-
ees (and qualified dependents) minimum essential coverage
under an eligible employer-sponsored plan.” Brief for Re-
spondent/Cross-Petitioner States 23 (internal quotation
marks omitted). They say that the Act’s insistence that
they “expand Medicaid eligibility” has led to “increas[ed] . . .
Medicaid expenditures.” Ibid. And they argue that “the
[Act]’s vast and complex rules and regulations” will require
additional expenditures. Id., at 22–23 (citing App. 152–
153, 174, 190–191). They seem to argue that they will have
to pay more to expand coverage for employees who work 30–
39 hours per week, see App. 174, and for those who become
too old to remain in foster care, see id., at 152–153.
Again, the problem for the state plaintiffs is that these
other provisions also operate independently of §5000A(a).
See 26 U. S. C. §4980H(a) (establishing an employer man-
date); §4980H(c)(4) (establishing employee eligibility for
16 CALIFORNIA v. TEXAS
Opinion of the Court
employer health plans for employees working 30–39 hours
per week); 42 U. S. C. §1396a(a)(10)(A)(i)(IX) (providing
continuing Medicaid coverage for those aged out of foster
care). At most, those provisions pick up only §5000A(f)’s
definition of minimum essential coverage in related subsec-
tions. No one claims these other provisions violate the Con-
stitution. Rather, the state plaintiffs attack the constitu-
tionality of only the minimum essential coverage provision.
They have not alleged that they have suffered an “injury
fairly traceable to the defendant’s allegedly unlawful con-
duct.” Cuno, 547 U. S., at 342 (quoting Allen, 468 U. S., at
751).
* * *
For these reasons, we conclude that the plaintiffs in this
suit failed to show a concrete, particularized injury fairly
traceable to the defendants’ conduct in enforcing the spe-
cific statutory provision they attack as unconstitutional.
They have failed to show that they have standing to attack
as unconstitutional the Act’s minimum essential coverage
provision. Therefore, we reverse the Fifth Circuit’s judg-
ment in respect to standing, vacate the judgment, and re-
mand the cases with instructions to dismiss.
It is so ordered.
Cite as: 593 U. S. ____ (2021) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–840 and 19–1019
_________________
CALIFORNIA, ET AL., PETITIONERS
19–840 v.
TEXAS, ET AL.
TEXAS, ET AL., PETITIONERS
19–1019 v.
CALIFORNIA, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 17, 2021]
JUSTICE THOMAS, concurring.
There is much to commend JUSTICE ALITO’s account of
“our epic Affordable Care Act trilogy.” Post, at 1 (dissenting
opinion). This Court has gone to great lengths to rescue the
Act from its own text. Post, at 1–2. So have the Act’s de-
fenders, who argued in first instance that the individual
coverage mandate is the Act’s linchpin, yet now, in an
about-face, contend that it is just a throwaway sentence.
But, whatever the Act’s dubious history in this Court, we
must assess the current suit on its own terms. And, here,
there is a fundamental problem with the arguments ad-
vanced by the plaintiffs in attacking the Act—they have not
identified any unlawful action that has injured them. Ante,
at 5, 11, 14–16. Today’s result is thus not the consequence
of the Court once again rescuing the Act, but rather of us
adjudicating the particular claims the plaintiffs chose to
bring.
I
This Court first encountered the Act in 2011. That case
2 CALIFORNIA v. TEXAS
THOMAS, J., concurring
involved the constitutionality of the Act’s individual cover-
age mandate. National Federation of Independent Business
v. Sebelius, 567 U. S. 519, 530 (2012). Despite correctly rec-
ognizing that Congress’ enumerated powers did not allow it
to impose such a mandate, the Court nonetheless upheld it
by characterizing the “financial penalty” imposed on those
who failed to comply with the mandate as a “tax.” Id., at
574.
That curious approach left us with no need to address a
subsidiary question on which we had also granted review:
whether the Act was inseverable from the mandate and
thus would need to fall if the mandate were unconstitu-
tional. The parties challenging the law argued “yes.” And
the Government agreed in part. It stressed that the man-
date could not be severed from two other important features
of the Act: the “guaranteed-issue” provision—which bars in-
surers from denying coverage based on medical conditions
or history—and the “community-rating” provision—which
bars insurers from charging individuals higher premiums
for similar reasons. Brief for Respondents in National Fed-
eration of Independent Business v. Sebelius, O. T. 2011, No.
11–393, pp. 44–54; see 42 U. S. C. §§300gg–1, 300gg–3,
300gg–4(a), 300gg(a)(1), 300gg–4(b).
According to the Government, the mandate was “neces-
sary to make those [other] reforms effective.” Brief for Re-
spondents in No. 11–393, at 44. It noted that “Congress’s
findings expressly state that enforcement of those provi-
sions without a minimum coverage provision would restrict
the availability of health insurance and make it less afford-
able—the opposite of Congress’s goals in enacting the Af-
fordable Care Act.” Id., at 44–45; see §§18091(2)(H)–(J).
And as JUSTICE ALITO discusses in more detail, at the time
we decided NFIB, “it was widely thought that without the
mandate much of the Act—and perhaps even the whole
scheme—would collapse.” Post, at 1, 27–29.
Cite as: 593 U. S. ____ (2021) 3
THOMAS, J., concurring
This Court also embraced that view when we reencoun-
tered the Act in 2015. King v. Burwell, 576 U. S. 473. Sav-
ing the Act again through a feat of linguistic ingenuity—
this time by redefining “State” to mean “ ‘State or the Fed-
eral Government,’ ” id., at 498 (Scalia, J., dissenting)—the
Court explained that “Congress [had] found that the guar-
anteed issue and community rating requirements would not
work without the [mandate],” id., at 482; see also post, at 5
(ALITO, J., dissenting).
But times have changed. In this suit, the plaintiffs assert
that the mandate is unconstitutional because it no longer
imposes financial consequences and thus cannot be justified
as a tax. And given that the mandate is unconstitutional,
other portions of the Act that actually harm the plaintiffs
must fall with it. In response to this theory, the current
administration contends that the mandate can be severed
from the rest of the Act. Letter from E. Kneedler, Deputy
Solicitor General, to S. Harris, Clerk of Court (Feb. 10,
2021) (notifying the Court of the Federal Government’s
change in position). The Act’s other defenders agree. Brief
for Petitioners 35–49. In other words, those who would pre-
serve the Act must reverse course and argue that the man-
date has transformed from the cornerstone of the law into
a standalone provision.
II
On all of this JUSTICE ALITO and I agree. Where we part
ways is on the relief to which the plaintiffs are entitled. The
Constitution gives this Court only the power to resolve
“Cases” or “Controversies.” Art. III, §2. As everyone
agrees, we have interpreted this language to require a
plaintiff to present an injury that is traceable to a particu-
lar “unlawful” action. Ante, at 5, 11, 14–16; post, at 9–10
(ALITO, J., dissenting). And in light of the specific theories
and arguments advanced in this suit, I do not believe that
4 CALIFORNIA v. TEXAS
THOMAS, J., concurring
the plaintiffs have carried this burden. As the majority ex-
plains in detail, the individual plaintiffs allege only harm
caused by the bare existence of an unlawful statute that
does not impose any obligations or consequences. Ante, at
5–10. That is not enough. The state plaintiffs’ arguments
fail for similar reasons. Although they claim harms flowing
from enforcement of certain parts of the Act, they attack
only the lawfulness of a different provision. None of these
theories trace a clear connection between an injury and un-
lawful conduct.
JUSTICE ALITO does not contest that analysis. Rather, he
argues that the state plaintiffs can establish standing an-
other way: through “inseverability.” Post, at 15 (“First, [the
States] contend that the individual mandate is unconstitu-
tional . . . . Second, they argue that costly obligations im-
posed on them by other provisions of the ACA cannot be
severed from the mandate. If both steps of the States’ ar-
gument that the challenged enforcement actions are unlaw-
ful are correct, it follows that the Government cannot law-
fully enforce those obligations against the States”). This
theory offers a connection between harm and unlawful con-
duct. And, it might well support standing in some circum-
stances, as it has some support in history and our case law.
See post, at 16–20; Lea, Situational Severability, 103 Va. L.
Rev. 735, 764–776 (2017).
But, I do not think we should address this standing-
through-inseverability argument for several reasons. First,
the plaintiffs did not raise it below, and the lower courts did
not address it in any detail. 945 F. 3d 355, 386, n. 29 (CA5
2019). That omission is reason enough not to address this
theory because “ ‘we are a court of review, not of first view.’ ”
Brownback v. King, 592 U. S. ___, ___, n. 4 (2021) (slip op.,
at 5, n. 4). Second, the state plaintiffs did not raise this
theory in their opening brief before this Court, see Brief for
Cite as: 593 U. S. ____ (2021) 5
THOMAS, J., concurring
Respondent/Cross-Petitioner States 18–30,1 and they did
not even clearly raise it in reply.2 Third, this Court has not
addressed standing-through-inseverability in any detail,
largely relying on it through implication. See post, at 16–
20; Steel Co. v. Citizens for Better Environment, 523 U. S.
83, 91 (1998) (“We have often said that drive-by jurisdic-
tional rulings . . . have no precedential effect”). And fourth,
this Court has been inconsistent in describing whether in-
severability is a remedy or merits question. To the extent
the parties seek inseverability as a remedy, the Court is
powerless to grant that relief. See Murphy v. National Col-
legiate Athletic Assn., 584 U. S. ___, ___–___ (2018) (slip op.,
at 3–4) (THOMAS, J., concurring); see also Barr v. American
Assn. of Political Consultants, 591 U. S. ___, ___, n. 8 (2020)
——————
1 The States instead raised the two pocketbook injury theories dis-
cussed by the Court, ante, at 10; Brief for Respondent/Cross-Petitioner
States 19–28, along with another irrelevant theory. Both theories fo-
cused only on the mandate’s unlawfulness. The dissent points to certain
language arguably touching on standing-through-inseverability, post, at
13–14, but I respectfully disagree. That language addresses a different
theory—the argument that the unlawful mandate harms the States by
increasing the cost of complying with other Act provisions, such as re-
porting requirements relating to the mandate. Ante, at 14–16; Brief for
Respondent/Cross-Petitioner States 20–25 (discussing how “the individ-
ual mandate itself increased the costs to state respondents in at least six
ways” (brackets and internal quotation marks omitted)). As the Court
notes, “[n]o one claims these other provisions violate the Constitution.”
Ante, at 16. And, the Court does not address the argument that these
provisions are otherwise unlawful. Ante, at 10 (“declin[ing] to consider”
the standing-through-inseverability theory raised by the dissent “on be-
half of the state plaintiffs”).
2 This lack of legal development is particularly significant because
standing-through-inseverability—assuming it is a legitimate theory of
standing—is fundamentally a merits-like exercise that requires courts to
apply ordinary principles of statutory interpretation to determine if it is
at least “arguable” that a statute links the lawfulness of one provision to
the lawfulness of another. See Steel Co. v. Citizens for Better Environ-
ment, 523 U. S. 83, 89 (1998). Thus, a failure to develop a standing-
through-inseverability argument poses a significant obstacle to review.
6 CALIFORNIA v. TEXAS
THOMAS, J., concurring
(plurality opinion) (slip op., at 16, n. 8). Thus, standing-
through-inseverability could only be a valid theory of stand-
ing to the extent it treats inseverability as a merits exercise
of statutory interpretation. See post, at 15–16 (ALITO, J.,
dissenting); Lea, supra, at 764–776. But petitioners have
proposed no such theory.
* * *
The plaintiffs failed to demonstrate that the harm they
suffered is traceable to unlawful conduct. Although this
Court has erred twice before in cases involving the Afford-
able Care Act, it does not err today.
Cite as: 593 U. S. ____ (2021) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–840 and 19–1019
_________________
CALIFORNIA, ET AL., PETITIONERS
19–840 v.
TEXAS, ET AL.
TEXAS, ET AL., PETITIONERS
19–1019 v.
CALIFORNIA, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 17, 2021]
JUSTICE ALITO, with whom JUSTICE GORSUCH joins, dis-
senting.
Today’s decision is the third installment in our epic Af-
fordable Care Act trilogy, and it follows the same pattern as
installments one and two. In all three episodes, with the
Affordable Care Act facing a serious threat, the Court has
pulled off an improbable rescue.
In the opening installment, National Federation of Inde-
pendent Business v. Sebelius, 567 U. S. 519 (2012) (NFIB),
the Court saved the so-called “individual mandate,” the
same critical provision at issue in today’s suit. At that time,
the individual mandate imposed a “penalty” on most Amer-
icans who refused to purchase health insurance or enroll in
Medicaid, see 26 U. S. C. §5000A (2012 ed.), and it was
widely thought that without the mandate much of the Act—
and perhaps even the whole scheme—would collapse. The
Government’s principal defense of the mandate was that it
represented a lawful exercise of Congress’s power to regu-
late interstate commerce, see U. S. Const., Art. I, §8, cl. 3,
2 CALIFORNIA v. TEXAS
ALITO, J., dissenting
but the Court rejected that unprecedented argument, see
567 U. S., at 572 (opinion of the Court); id., at 561 (opinion
of ROBERTS, C. J.); id., at 648 (joint dissent of Scalia, Ken-
nedy, THOMAS, and ALITO, JJ.). That might have foretold
doom, but then, in a stunning turn of events, the threat to
the ACA was defused when the “penalty” for failing to com-
ply with the mandate was found to be a “tax” and thus to be
justified as an exercise of Congress’s taxing power. Id., at
575 (opinion of ROBERTS, C. J.); see also id., at 574 (opinion
of the Court); see U. S. Const., Art. I, §8, cl. 1. By a vote of
5 to 4, the individual mandate—and with it the rest of the
ACA—lived on.
In the next installment, King v. Burwell, 576 U. S. 473(2015), the Court carried out an equally impressive rescue.
One of the Act’s key provisions provided subsidies to per-
sons purchasing insurance through exchanges established
by a “State.” 26 U. S. C. §§36B(b)–(c) (2012 ed.). When
many States refused to establish such exchanges, the Fed-
eral Government did so instead. But the critical subsidies
were seemingly unavailable on those exchanges, which had
not been established by a “State” in any conventional sense
of the term. Once again, some feared that the Act was in
mortal danger, but the Court came to the rescue by finding
that the Federal Government is a “State.” 576 U. S., at
484–498.
Now, in the trilogy’s third episode, the Court is presented
with the daunting problem of a “tax” that does not tax. Can
the taxing power, which saved the day in the first episode,
sustain such a curious creature? In 2017, Congress reduced
the “tax” imposed on Americans who failed to abide by the
individual mandate to $0. With that move, the slender reed
that supported the decision in NFIB was seemingly cut
down, but once again the Court has found a way to protect
the ACA. Instead of defending the constitutionality of the
individual mandate, the Court simply ducks the issue and
holds that none of the Act’s challengers, including the 18
Cite as: 593 U. S. ____ (2021) 3
ALITO, J., dissenting
States that think the Act saddles them with huge financial
costs, is entitled to sue.
Can this be correct? The ACA imposes many burdensome
obligations on States in their capacity as employers, and
the 18 States in question collectively have more than a mil-
lion employees.1 Even $1 in harm is enough to support
standing. Yet no State has standing?
In prior cases, the Court has been selectively generous in
allowing States to sue. Just recently, New York and certain
other States were permitted to challenge the inclusion of a
citizenship question in the 2020 census even though any ef-
fect on them depended on a speculative chain of events. See
Department of Commerce v. New York, 588 U. S. ___, ___–
___ (2019) (slip op., at 9–11). The States’ theory was that
the citizenship question might cause some residents to vio-
late their obligation to complete a census questionnaire and
that this, in turn, might decrease the States’ allocation of
House seats and their share of federal funds. Id., at ___
(slip op., at 9).
Last Term, Pennsylvania and New Jersey were permitted
to contest a rule exempting the Little Sisters of the Poor
and other religious employers from the ACA’s contraceptive
mandate. Little Sisters of the Poor Saints Peter and Paul
Home v. Pennsylvania, 591 U. S. ___ (2020). There, the the-
ory was that some affected employees might not be able to
afford contraceptives and might therefore turn to state-
funded sources to pay for their contraceptives or the ex-
penses of an unwanted pregnancy.2 Some years ago, Mas-
sachusetts was allowed to sue (and force the Environmental
——————
1 See Dept. of Commerce, Bureau of Census, 2020 Annual Survey of
Public Employment & Payroll Datasets, State Government Employment
& Payroll Data (May 2021), www.census.gov/data/datasets/2020/econ/
apes/annual-apes.html.
2 See Pennsylvania v. President of United States, 930 F. 3d 543, 561–
565 (CA3 2019). Although our opinion did not address the issue, we are
required to consider Article III standing in every case that comes before
4 CALIFORNIA v. TEXAS
ALITO, J., dissenting
Protection Agency (EPA) to regulate greenhouse gases) on
the theory that failure to do so would cause the ocean to rise
and reduce the size of the Commonwealth. See Massachu-
setts v. EPA, 549 U. S. 497, 521–526 (2007). On the other
hand, when Texas recently tried to sue to press different
legal issues in an original action, the Court would not even
allow it to file its complaint. See Texas v. California, post,
p. ___ (ALITO, J., dissenting).
In this suit, as I will explain, Texas and the other state
plaintiffs have standing, and now that the “tax” imposed by
the individual mandate is set at $0, the mandate cannot be
sustained under the taxing power. As a result, it is clearly
unconstitutional, and to the extent that the provisions of
the ACA that burden the States are inextricably linked to
the individual mandate, they too are unenforceable.
I
A
The Patient Protection and Affordable Care Act (ACA),
124 Stat. 119, comprehensively reengineered our country’s
healthcare laws. The Act itself totals 906 pages, and thou-
sands of pages of regulations have been issued to imple-
ment it. At its core, the ACA includes a series of “closely
interrelated” provisions, NFIB, 567 U. S., at 691 (joint dis-
sent), that impose a bevy of new legal obligations on indi-
viduals, insurers, employers, and States.
A critical component of the Act’s design was the individ-
ual mandate, which provides that each “applicable individ-
ual shall . . . ensure that the individual . . . is covered under
minimum essential coverage.” 26 U. S. C. §5000A(a). Orig-
inally, most individuals who were subject to but disobeyed
this command were liable for what the Act called a
“[s]hared responsibility payment” or “penalty.” §5000A(b).
The individual mandate was “closely intertwined” with
——————
us. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 95
(1998).
Cite as: 593 U. S. ____ (2021) 5
ALITO, J., dissenting
other critical provisions, King, 576 U. S., at 482, including
the critical “guaranteed issue” and “community rating” pro-
visions, which ensured that individuals with preexisting
medical conditions would not be denied coverage or pay un-
usually high premiums. See, e.g., 42 U. S. C. §§300gg,
300gg–1(a). Put simply, “Congress found that the guaran-
teed issue and community rating requirements would not
work without the” individual mandate. King, 576 U. S., at
482.
Several additional features of the ACA are important in
this suit. First, certain employers, including the state
plaintiffs, must offer employees the opportunity to enroll in
costly “minimum essential [healthcare] coverage,” and the
Act demands that such plans cover an employee’s depend-
ent children until they turn 26. 26 U. S. C. §4980H; 42
U. S. C. §300gg–14. Most employers that fail to offer this
coverage are subject to a hefty penalty of thousands of dol-
lars per employee. 26 U. S. C. §§4980H(a), (b), (c)(1).
The ACA also imposes burdensome reporting require-
ments on certain employers like the state plaintiffs. See
§§6055, 6056. Under §6055 of the Internal Revenue Code,
employers that “provid[e] minimum essential coverage”
must submit documentation every year to both the Internal
Revenue Service and the covered individuals. §§6055(a)–
(c). Section 6056 imposes similar reporting obligations on
“[e]very applicable large employer” subject to the employer
mandate. See §§6056(a)–(c). Failure to satisfy these re-
porting requirements can result in substantial monetary
penalties. See §§6721, 6722.
B
Although the ACA survived this Court’s decisions in
NFIB and King, it remained controversial, and in 2017, a
major effort was made to repeal much of it. A bill to do just
that passed the House of Representatives in May, but soon
after failed in the Senate. See American Health Care Act
6 CALIFORNIA v. TEXAS
ALITO, J., dissenting
of 2017, H. R. 1628, 115th Cong., 1st Sess. (2017). Later
that year, the two Chambers compromised in the Tax Cuts
and Jobs Act (TCJA), Pub. L. 115–97, 131 Stat. 2054, which
set the amount of the “tax” imposed for noncompliance with
the individual mandate at “[z]ero percent” and “$0.”
§11081, 131 Stat. 2092 (amending 26 U. S. C. §5000A).
What the NFIB Court had salvaged as a “tax” could now
raise no revenue.
C
After the enactment of the TCJA, Texas and 17 other
States brought suit against the United States, the Commis-
sioner of the IRS, the IRS, the Secretary of Health and Hu-
man Services, and the Department of Health and Human
Services to challenge the ACA.3 The state plaintiffs identi-
fied many expenses imposed on them by the ACA, and they
sought declaratory and injunctive relief. In their view, the
individual mandate could no longer be sustained as a “tax,”
and the remainder of the ACA was unenforceable because
it was inseparable from that unconstitutional provision.
Soon thereafter, two individuals joined the States as plain-
tiffs. California, 15 other States, and the District of Colum-
bia intervened to defend the ACA.4 For its part, the Federal
Government agreed that the individual mandate was un-
constitutional but argued that it was severable from almost
——————
3 These States were Alabama, Arizona, Arkansas, Florida, Georgia,
Indiana, Kansas, Louisiana, Mississippi (via its Governor), Missouri, Ne-
braska, North Dakota, South Carolina, South Dakota, Tennessee, Utah,
and West Virginia. The State of Wisconsin was also a plaintiff in District
Court but has since been voluntarily dismissed from the suit. Former
Maine Governor Paul LePage attempted to represent Maine as a plaintiff
in the District Court, but was subsequently dismissed from the lawsuit.
4 The state intervenors are California, Connecticut, Delaware, Hawaii,
Illinois, Kentucky (via its Governor), Massachusetts, Minnesota, New
Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Vir-
ginia, and Washington. Colorado, Iowa, Michigan, and Nevada also
joined as additional state intervenors while this suit was on appeal.
Cite as: 593 U. S. ____ (2021) 7
ALITO, J., dissenting
all other portions of the ACA.
Ruling on what it construed as a plaintiffs’ motion for
partial summary judgment, the District Court declared the
entire ACA unlawful. Texas v. United States, 340 F. Supp.
3d 579, 619 (ND Tex. 2018). It held that the individual
plaintiffs had standing, that the individual mandate could
no longer be sustained as a lawful exercise of Congress’s
taxing power, and that the mandate was inseverable from
the remainder of the ACA, including the provisions that im-
pose financial burdens on the state plaintiffs. Id., at 592–
619.
On appeal, the Fifth Circuit affirmed in part and vacated
in part. Texas v. United States, 945 F. 3d 355 (CA5 2019).
It found that both the state plaintiffs and the individual
plaintiffs had standing, and it agreed with the District
Court that the individual mandate could no longer be sus-
tained under the taxing power. But the Court of Appeals
remanded the case and directed the District Court to reas-
sess the broad relief it had ordered.
The state intervenors then filed a petition for a writ of
certiorari seeking review of the Court of Appeals’ interlocu-
tory decision. The plaintiffs opposed interlocutory review,
but filed a conditional cross-petition asking us to review the
Court of Appeals’ remand decision in the event that the
Court granted the state intervenors’ petition. This Court
granted both petitions. 589 U. S. ___ (2020).
II
We may consider the merits of this appeal if even one
plaintiff has standing, Little Sisters of the Poor, 591 U. S.,
at ___, n. 6; Rumsfeld v. Forum for Academic and Institu-
tional Rights, Inc., 547 U. S. 47, 52, n. 2 (2006), but the ma-
jority concludes that no plaintiff—neither the States that
originally brought suit nor the individual plaintiffs who
later joined them—has standing under Article III of the
8 CALIFORNIA v. TEXAS
ALITO, J., dissenting
Constitution. That is a remarkable holding. While the in-
dividual plaintiffs’ claim to standing raises a novel ques-
tion, the States have standing for reasons that are straight-
forward and meritorious. The Court’s contrary holding is
based on a fundamental distortion of our standing jurispru-
dence.
A
The governing rules are well-settled. To establish Article
III standing, a plaintiff must show: (1) “an injury in fact”;
(2) that this injury “is fairly traceable to the challenged con-
duct of the defendant”; and (3) that the injury “is likely to
be redressed by a favorable judicial decision.” Spokeo, Inc.
v. Robins, 578 U. S. 330, 338 (2016); see also, e.g., Carney v.
Adams, 592 U. S. ___, ___ (2020) (slip op., at 4); Hol-
lingsworth v. Perry, 570 U. S. 693, 704 (2013); Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 560–561 (1992).
In the present suit, there is no material dispute that the
States have satisfied two of these requirements. First,
there is no question that the States have demonstrated an
injury in fact. An injury in fact is “an invasion of a legally
protected interest that is concrete and particularized and
actual or imminent, not conjectural or hypothetical.”
Spokeo, 578 U. S., at 339 (internal quotation marks omit-
ted). A financial or so-called “pocketbook” injury consti-
tutes injury in fact, and even a small pocketbook injury—
like the loss of $1—is enough. See Czyzewski v. Jevic Hold-
ing Corp., 580 U. S. ___, ___ (2017) (slip op., at 11) (“For
standing purposes, a loss of even a small amount of money
is ordinarily an ‘injury’ ”). Here, the States have offered
plenty of evidence that they incur substantial expenses in
order to comply with obligations imposed by the ACA.
There is likewise no material dispute that these financial
injuries could be redressed by a favorable judgment. The
District Court declared the entire ACA unenforceable, and
that judgment, if sustained, would spare the States from
Cite as: 593 U. S. ____ (2021) 9
ALITO, J., dissenting
the costs of complying with the ACA’s provisions. So too
would a more modest judgment limited to only those ACA
provisions that directly burden the States.
The standing dispute in this suit thus turns on traceabil-
ity. See ante, at 14–16. But once this requirement is
properly understood, it is apparent that it too is met.
Our cases explain that traceability requires “a causal con-
nection between the injury and the conduct complained of.”
Lujan, 504 U. S., at 560 (emphasis added). In other words,
the injury has to be “ ‘fairly . . . trace[able] to the challenged
action of the defendant.’ ” Ibid. (quoting Simon v. Eastern
Ky. Welfare Rights Organization, 426 U. S. 26, 41 (1976);
emphasis added). We have repeatedly and consistently de-
scribed the traceability inquiry this way. See Spokeo, 578
U. S., at 338 (“The plaintiff must have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct
of the defendant”); Hein v. Freedom From Religion Founda-
tion, Inc., 551 U. S. 587, 598 (2007) (plurality opinion) (“A
plaintiff must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct” (internal quotation
marks omitted)); DaimlerChrysler Corp. v. Cuno, 547 U. S.
332, 342 (2006) (“A plaintiff must allege personal injury
fairly traceable to the defendant’s allegedly unlawful con-
duct” (internal quotation marks omitted)); Bennett v. Spear,
520 U. S. 154, 162 (1997) (requiring “that the injury is fairly
traceable to the actions of the defendant” (internal quota-
tion marks omitted)); Lujan, 504 U. S., at 560 (requiring an
injury “fairly traceable to the challenged action of the de-
fendant” (internal quotation marks and alterations omit-
ted)); Allen v. Wright, 468 U. S. 737, 757 (1984) (requiring
an injury “fairly traceable to the Government conduct re-
spondents challenge as unlawful”).5 Tracing injuries to par-
ticular conduct ensures that the properly adverse parties
——————
5 There are dozens upon dozens of examples. Some recent cases include
10 CALIFORNIA v. TEXAS
ALITO, J., dissenting
are before the court and reinforces the traditional under-
standing of legal judgments. See Massachusetts v. Mellon,
262 U. S. 447, 488 (1923) (“If a case for preventive relief be
presented,” what the court enjoins are “the acts of the offi-
cial” charged with the law’s enforcement).
The States have clearly shown that they suffer concrete
and particularized financial injuries that are traceable to
conduct of the Federal Government. The ACA saddles them
with expensive and burdensome obligations, and those ob-
ligations are enforced by the Federal Government. That is
sufficient to establish standing. As the Court observed in
Lujan, when a party is “an object of the action . . . at issue,”
“there is ordinarily little question that the action . . . has
caused [that party] injury”—i.e., that the injury is traceable
to that action—“and that a judgment preventing . . . the ac-
tion will redress it.” 504 U. S., at 561–562. That is pre-
cisely the situation here. The state plaintiffs have shown
that they are the object of potential federal enforcement ac-
tions if they do not comply with costly and burdensome ob-
ligations that the ACA imposes.
Consider what the state plaintiffs have shown with re-
spect to the ACA reporting requirements codified at 26
U. S. C. §§6055 and 6056. These sections provide the basis
for the familiar 1094 and 1095 IRS tax forms. Section 6055
applies to those who “provid[e] minimum essential coverage
to an individual during a calendar year.” Subsection (a) of
that provision requires that returns be filed with the IRS,
and subsection (c) requires that similar forms be provided
——————
Uzuegbunam v. Preczewski, 592 U. S. ___, ___ (2021) (slip op., at 3); Car-
ney v. Adams, 592 U. S. ___, ___ (2020) (slip op., at 4); Department of
Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 9); Virginia
House of Delegates v. Bethune-Hill, 587 U. S. ___, ___ (2019) (slip op., at
3); Gill v. Whitford, 585 U. S. ___, ___ (2018) (slip op., at 13); Town of
Chester v. Laroe Estates, Inc., 581 U. S. ___, ___ (2017) (slip op., at 5);
Bank of America Corp. v. Miami, 581 U. S. ___, ___ (2017) (slip op., at 5);
and Czyzewski v. Jevic Holding Corp., 580 U. S. ___, ___ (2017) (slip op.,
at 9).
Cite as: 593 U. S. ____ (2021) 11
ALITO, J., dissenting
to covered individuals. Section 6056 similarly requires cer-
tain large employers to report to both the IRS and employ-
ees about whether they offer health insurance coverage.
The States plainly have demonstrated standing to seek re-
lief from these burdensome reporting obligations.
Start with injury in fact. The States have offered undis-
puted evidence documenting the ongoing financial costs of
complying with these reporting requirements. Missouri, for
example, offered a declaration attesting to spending
$185,061 in fiscal year 2016 on Forms 1094 and 1095. App.
163. That declaration also attested to costs or projected
costs of more than $45,000 for each fiscal year from 2017
through 2021. Ibid. South Dakota provided evidence of
“ongoing” reporting costs totaling $100,000. Id., at 187.
Kansas offered evidence of more than $100,000 in reporting
costs. Id., at 142. These are just a few examples. See also,
e.g., id., at 103 (Texas); id., at 350–351 (Georgia). There is
no question that these undisputed, ongoing financial costs
qualify as injuries in fact. See Jevic Holding Corp., 580
U. S., at ___ (slip op., at 11).
Now turn to traceability. Are these financial injuries
“fairly traceable to the challenged conduct”? Hol-
lingsworth, 570 U. S., at 704. The answer is clearly yes.
The reporting requirements in §§6055 and 6056 are en-
forceable by the Federal Government, and noncompliance
may result in heavy penalties. Section 6721(a)(1) of the In-
ternal Revenue Code, for example, provides “a penalty” for
the failure to complete an “information return,” which in-
cludes reports required by §§6055(a) and 6056(a). See 26
U. S. C. §§6724(d)(1)(B)(xxiv), (xxv). And §6722(a)(1) pro-
vides “a penalty” for the failure to issue a “payee state-
ment,” which includes the reports required by §§6055(c)
and 6056(c). See §§6724(d)(2)(GG), (HH). These penalties
can amount to at least $280 per infraction, and they can
quickly run up into the millions of dollars. See §§6721,
12 CALIFORNIA v. TEXAS
ALITO, J., dissenting
6722.6
That leaves redressability, which asks whether the re-
quested relief is likely to redress the party’s injury. Steel
Co. v. Citizens for Better Environment, 523 U. S. 83, 103
(1998). Looking to the relief the District Court in fact
granted makes it obvious that the States’ injuries in the
form of ongoing reporting expenses are redressable. The
District Court entered a judgment that, among other
things, declared the reporting requirements in §§6055 and
6056 unenforceable. See 340 F. Supp. 3d, at 619. With that
judgment in hand, the States would be freed from the obli-
gation to expend funds to comply with those require-
ments—redressing their financial injury prospectively.
The state plaintiffs have similarly demonstrated stand-
ing to seek relief from ACA provisions requiring them to of-
fer expensive health insurance coverage for their employ-
ees. Consider the ACA’s requirement that group health
plans and health insurance offerings extend coverage to
adult children until they reach the age of 26. See 42 U. S. C.
§300gg–14(a). Texas has spent more than $80 million com-
plying with that rule. App. 81. Missouri has spent more
than $10 million. Id., at 159; id., at 157 (“The Missouri Con-
solidated Health Care Plan is a non-federal governmental
health plan which provides insurance coverage for most
state employees”); id., at 159 (Missouri will “indefinitely
continue paying these additional costs”).
These obligations, too, are backed by substantial enforce-
ment mechanisms. For instance, the state plaintiffs gener-
ally must offer employees coverage that complies with
§300gg–14 to avoid violating the employer mandate, see 26
U. S. C. §4980H, and the failure to comply would expose the
States to penalties of thousands of dollars per employee
each year, see §§4980H(a), (b), (c)(1). Similarly, the failure
——————
6 Willful failure to comply with the reporting requirements in §§6055
and 6056 can also result in criminal penalties. See 26 U. S. C. §7203.
Cite as: 593 U. S. ____ (2021) 13
ALITO, J., dissenting
to cover adult children would expose many state health
plans to penalties under 42 U. S. C. §300gg–22(b)(2), and
those penalties can amount to $100 per day for each person
offered noncompliant coverage. Ibid. Thus, the States are
presented with the choice of spending millions to cover
adult children or risking untold sums for failing to do so.
In this way, the States’ financial injuries from offering
health coverage to adult children are traceable to the loom-
ing threat of enforcement actions. And those financial in-
juries can be prospectively redressed by a declaratory judg-
ment making clear that the States are not, in fact, obligated
to offer health coverage to children up to age 26.
While I have outlined two examples of concrete, tracea-
ble, and redressable injuries demonstrated by the state
plaintiffs, these examples are not exhaustive. The ACA is
an enormously complex statute, and the States have offered
evidence of ongoing financial injuries relating to compliance
with many other different (and enforceable) ACA provi-
sions. See, e.g., App. 81–86 (Texas’s compliance costs); id.,
at 139 (Kansas); id., at 158–162, 165–170 (Missouri); id., at
182–184 (South Carolina); id., at 186–190 (South Dakota);
id., at 345–350 (Georgia).
B
The Court largely ignores the theory of standing outlined
above. It devotes most of its attention to two other theories,
see ante, at 4–14, and when it does address the relevant in-
juries, its arguments are deeply flawed.
The Court’s primary argument rests on a patent distor-
tion of the traceability prong of our established test for
standing. Partially quoting a line in Allen, the Court de-
mands a showing that the “Government’s conduct in ques-
tion is . . . ‘fairly traceable’ to enforcement of the ‘allegedly
unlawful’ provision of which the plaintiffs complain—
§5000A(a).” Ante, at 15 (quoting 468 U. S., at 751; emphasis
added). This is a flat-out misstatement of the law and what
14 CALIFORNIA v. TEXAS
ALITO, J., dissenting
the Court wrote in Allen. What Allen actually requires is a
“personal injury fairly traceable to the defendant’s allegedly
unlawful conduct,” id., at 751 (emphasis added). And what
this statement means is that the plaintiff ’s “injury” must
be traceable to the defendant’s conduct, and that conduct
must be “allegedly unlawful.”7 “Allegedly unlawful” means
that the plaintiff must allege that the conduct is unlawful.
(The States allege that the challenged enforcement actions
are unlawful using a traditional legal argument, see infra,
at 15–20.) But a plaintiff ’s standing (and thus the court’s
Article III jurisdiction) does not require a demonstration
that the defendant’s conduct is in fact unlawful. That is a
merits issue.
If Article III standing required a showing that the plain-
tiff ’s alleged injury is traceable to (i.e., in some way caused
by) an unconstitutional provision, then whenever a claim of
unconstitutionality was ultimately held to lack legal
merit—even after a full trial—the consequence would be
that the court lacked jurisdiction to entertain the suit in the
first place. That would be absurd, and this Court has long
resisted efforts to transform ordinary merits questions into
threshold jurisdictional questions by jamming them into
the standing inquiry. See, e.g., Arizona State Legislature v.
Arizona Independent Redistricting Comm’n, 576 U. S. 787,
800 (2015); Whitmore v. Arkansas, 495 U. S. 149, 155
(1990); ASARCO Inc. v. Kadish, 490 U. S. 605, 624 (1989).
“[S]tanding does not depend on the merits of a claim.” Da-
vis v. United States, 564 U. S. 229, 249, n. 10 (2011) (inter-
nal quotation marks and alterations omitted). And “ ‘juris-
diction is not defeated by the possibility that the averments
[in a complaint] might fail to state a cause of action on
which petitioners could actually recover.’ ” Steel Co., 523
——————
7 Allen repeated that point seven more times, see 768 U. S., at 752, 753,
n. 19, 757–759, and that is precisely what countless other cases require,
see supra, at 9–10, and n. 5. But the majority’s rejection of the relevant
theory of standing depends on this erroneous description of the law.
Cite as: 593 U. S. ____ (2021) 15
ALITO, J., dissenting
U. S., at 89 (quoting Bell v. Hood, 327 U. S. 678, 682 (1946);
alterations omitted). Rather, if the challenged action is “al-
legedly unlawful,” that suffices for standing purposes. Al-
len, 468 U. S., at 751; see also Whitmore, 495 U. S., at 155(“Our threshold inquiry into standing in no way depends on
the merits of the petitioner’s contention that particular con-
duct is illegal” (internal quotation marks and alterations
omitted)).
C
The Court’s distortion of the traceability requirement is
bad enough in itself, but there is more. After imposing an
obstacle that the States should not have to surmount to es-
tablish standing, the Court turns around and refuses to con-
sider whether the States have cleared that obstacle. It’s as
if the Court told the States: “In order to bring your case in
federal court, you have to pay a filing fee of $100,000, but
we will not give you a chance to pay that money.”
The Court says that the States cannot establish standing
unless they show that their injuries are traceable to the in-
dividual mandate, and the States claim that their injuries
are indeed traceable to the mandate. Their argument pro-
ceeds in two steps. First, they contend that the individual
mandate is unconstitutional because it does not fall within
any power granted to Congress by the Constitution. Sec-
ond, they argue that costly obligations imposed on them by
other provisions of the ACA cannot be severed from the
mandate. If both steps of the States’ argument that the
challenged enforcement actions are unlawful are correct, it
follows that the Government cannot lawfully enforce those
obligations against the States.
There can be no question that this argument is conceptu-
ally sound. Imagine Statute ABC. Provision A imposes en-
forceable legal obligations on the plaintiff. Provision B im-
poses a legal obligation on a different party. And provision
16 CALIFORNIA v. TEXAS
ALITO, J., dissenting
C provides that a party is not obligated to comply with pro-
vision A if provision B is held to be unconstitutional. Based
on the plain text of this law, a party subject to provision A
should be able to obtain relief from the enforcement of pro-
vision A if it can show that provision B is unconstitutional.
To hold otherwise would be directly contrary to the statu-
tory text. But the Court’s reasoning would make such a
claim impossible. The plaintiff would be thrown out of court
at the outset of the case for lack of standing.
That cannot be right. And if the Court really means to
foreclose all such claims from now on, that is a big change
because we have repeatedly heard such arguments and
evaluated them on the merits. See Lea, Situational Sever-
ability, 103 Va. L. Rev. 735, 769 (2017) (explaining that
similar “claims are a longstanding feature of American ju-
risprudence”).
In Seila Law LLC v. Consumer Financial Protection Bu-
reau, 591 U. S. ___ (2020), a law firm resisted the CFPB’s
efforts to enforce a civil investigative demand. The firm ar-
gued that (A) it was harmed by actions taken under statu-
tory provisions authorizing the Bureau to issue civil inves-
tigative demands; (B) the Bureau’s Director, under whose
authority the demands had been issued, was protected by
an unlawful removal restriction; and (C) the removal re-
striction was inseverable from the investigative provisions.
The Court did not decide the severability issue at the stand-
ing stage. Instead, it properly treated severability as a mer-
its issue, held that the removal restriction was unlawful,
and considered whether relief could be granted because the
investigative provisions were inseverable from the removal
restriction. Id., at ___–___ (opinion of the Court) (slip op.,
at 11–30); id., at ___–___ (plurality opinion) (slip op., at 30–
36).
Indeed, the Seila Law Court had little trouble dismissing
the same misguided approach to traceability that the ma-
jority adopts today. The court-appointed amicus suggested
Cite as: 593 U. S. ____ (2021) 17
ALITO, J., dissenting
that there was lack of traceability because there was no
proof that the injury was caused by the removal restriction.
“Our precedents say otherwise,” we explained, as a “plain-
tiff ’s injury must be fairly traceable to the challenged ac-
tion of the defendant,” and it is “sufficient that the chal-
lenger sustains injury from an executive act that allegedly
exceeds the official’s authority.” Id., at ___–___ (opinion of
the Court) (slip op., at 9–10) (internal quotation marks and
alterations omitted). Not a single Justice disputed that con-
clusion.
In Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 561 U. S. 477 (2010), an accounting firm
challenged the power of the Public Company Accounting
Oversight Board to regulate the accounting industry and
investigate its activities. The firm argued that (A) it was
harmed by the actions taken under statutory provisions
that gave the Board regulatory and investigatory authority;
(B) other provisions unlawfully insulated Board members
with dual-layer for-cause removal restrictions; and (C) the
removal provisions were inseverable from provisions au-
thorizing the pertinent regulatory activities. The Court en-
tertained this argument on the merits, concluding that the
removal restriction was unlawful, id., at 492–508, but re-
jecting the argument that the removal provision was inse-
verable from the provisions authorizing the actions that di-
rectly harmed the firm, id., at 508–510. While the Court’s
severability determination meant that the accounting firm
was “not entitled to broad injunctive relief against the
Board’s continued operations,” id., at 513, no one ques-
tioned the firm’s standing to seek that relief in the first
place.
In Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U. S. 172 (1999), several Bands of Chippewa Indians
sought a declaratory judgment that an 1837 Treaty gave
their members a right to hunt on historic Chippewa lands.
An 1850 Executive Order had purported to revoke those
18 CALIFORNIA v. TEXAS
ALITO, J., dissenting
hunting rights, but the Bands argued that (A) one portion
of the Executive Order purported to extinguish their hunt-
ing rights; (B) a different portion of the Executive Order—
the “removal order,” which had nothing to do with hunting
rights—was unlawful; and (C) the hunting rights revoca-
tion was inseverable from the removal order and thus inef-
fective. The Court entertained this argument on the merits
and granted relief. It first assumed “that the severability
standard for statutes also applies to Executive Orders.” Id.,
at 191. Then it determined that there was “no statutory or
constitutional authority” for the removal order and that the
“Executive Order was insufficient to [revoke hunting
rights] because it was not severable from the invalid re-
moval order.” Id., at 193, 195. In other words, the Bands
obtained relief with the same type of argument the state
plaintiffs press here.
In New York v. United States, 505 U. S. 144, 186 (1992),
the State of New York challenged three provisions of the
Low-Level Radioactive Waste Policy Amendments Act of
1985, 99 Stat. 1842, 42 U. S. C. §2021b et seq. Significant
for present purposes, the Court accepted New York’s chal-
lenge to one of those provisions, 505 U. S., at 174–177, and
rejected its challenges to two others, id., at 171–174, 183–
186. But the Court did not stop there. Instead, it went on
to consider whether New York nonetheless could obtain re-
lief from the other two provisions on the ground that those
provisions were inseverable from the unlawful provision
and thus unenforceable. Id., at 186–187; see Printz v.
United States, 521 U. S. 898, 935 (1997) (explaining that
New York “address[ed] severability where remaining provi-
sions at issue affected the plaintiffs”). In other words, the
Court considered whether New York could obtain relief
from the enforcement of independently constitutional pro-
visions where a statute contained (A) two independently
constitutional provisions; (B) an unconstitutional provision;
Cite as: 593 U. S. ____ (2021) 19
ALITO, J., dissenting
and (C) the constitutional provisions were arguably inse-
verable from the unconstitutional provision.
In Alaska Airlines, Inc. v. Brock, 480 U. S. 678 (1987), a
group of airlines challenged provisions of the Airline Dereg-
ulation Act of 1978, 92 Stat. 1705, that benefited airline em-
ployees. The airlines argued that (A) enforcement of and
regulations under those provisions injured them; (B) the
Airline Deregulation Act also contained an unlawful legis-
lative veto; and (C) the employee-benefit provisions were
“ineffective” because they were inseverable from the legis-
lative veto provision, 480 U. S., at 680. This Court consid-
ered and unanimously rejected the airlines’ argument on
the merits of the severability question, id., at 687–697, but
no one questioned the airlines’ standing to seek relief.
The Court’s treatment of these arguments in the cases
just discussed is not a modern innovation. In El Paso &
Northeastern R. Co. v. Gutierrez, 215 U. S. 87 (1909), for ex-
ample, a railway company challenged a portion of the Em-
ployers’ Liability Act of 1906, 34 Stat. 232, that preempted
territorial law more favorable to the railway. The company
argued that (A) a portion of the Act governing U. S. Terri-
tories exposed it to liability in the suit; (B) other portions
affecting intrastate commerce exceeded Congress’s Com-
merce Clause power; and (C) the first portion could not be
applied because it was inseverable from the unconstitu-
tional portions. The Court agreed that the interstate com-
merce aspects of the Act were unlawful, but held that they
were severable from the territorial provision. 215 U. S., at93–98.
In Marshall Field & Co. v. Clark, 143 U. S. 649 (1892),
three importers challenged the collection of tariffs under
the McKinley Tariff Act. See Act of Oct. 1, 1890, 26 Stat.
567. They argued that (A) several provisions of the Act im-
posed tariffs on goods they imported; (B) §3 of the Act un-
lawfully delegated legislative powers to the President by
permitting him to suspend the free importation of other
20 CALIFORNIA v. TEXAS
ALITO, J., dissenting
types of goods; and (C) §3 was inseverable from the provi-
sions imposing tariffs on the goods they imported. The
Court heard the argument on the merits and, after exten-
sive analysis, rejected the non-delegation challenge to §3.
Id., at 680–694. Because §3 was lawful, the Court did not
“enter upon the consideration” of whether “other parts of
the act, those which directly imposed duties upon articles
imported, would be inoperative” if §3 were unlawful. Id., at
694.
Similarly, in the Trade-Mark Cases, 100 U. S. 82 (1879),
this Court reviewed a series of criminal prosecutions for al-
leged violations of an 1876 criminal law prohibiting the
“fraudulent use, sale, and counterfeiting of trade-marks,”
id., at 92. The Court held that (A) the prosecutions under
the 1876 Act could not proceed because (B) an 1870 Act cre-
ating the underlying trademark rights exceeded Congress’s
powers under the Commerce Clause, id., at 95–98, and (C)
the 1876 Act underlying the prosecutions was inseverable
from the 1870 Act and thus “falls with it,” id., at 99.
There is nothing novel about the state plaintiffs’ claims.
What is new and revolutionary is the rule the Court has
concocted to sink those claims.
D
The Court has no real response to the arguments set out
above, so it falls back on the claim that the States forfeited
those arguments because they (1) did not “directly” argue
them in the courts below, (2) did not present them at the
certiorari stage, and (3) did not raise them in this Court.
See ante, at 10. JUSTICE THOMAS makes a forfeiture argu-
ment expressly. See ante, at 4–6, and nn. 1–2 (concurring
opinion).8 There is nothing to any of these arguments.
——————
8 In addition to claiming that the States forfeited the standing theory
set out in this dissent, JUSTICE THOMAS’s concurrence lists several addi-
tional reasons why we should not address that theory. None is persua-
sive.
Cite as: 593 U. S. ____ (2021) 21
ALITO, J., dissenting
Consider the States’ standing to seek relief from the IRS
reporting obligations. The States identified these costs in
their complaint, see App. 58–60, Amended Complaint
¶41(i); offered extensive evidence of these costs on summary
judgment, see supra, at 10–11; and argued that these pro-
visions cannot be severed from the individual mandate, see,
e.g., App. 63, Amended Complaint ¶57 (“The remainder of
the ACA is non-severable from the individual mandate,
meaning that the Act must be invalidated as a whole”).
They expressly advanced that argument in the Court of Ap-
peals, see Brief for State Appellees in Texas v. United
States, No. 19–10011 (CA5), pp. 23–24, 36–50, and the
Court of Appeals accepted it for standing purposes, see 945
F. 3d, at 384–387. In this Court, the States argued that
——————
The concurrence invokes the rule that merits decisions that do not dis-
cuss jurisdiction are not of precedential value on jurisdictional issues.
Ante, at 5. This argument is apparently a response to the many cases
(141 years’ worth) in which this Court reached the merits of claims struc-
tured like those of the state plaintiffs in the suit at hand. See supra, at
16–20. The suggestion, I take it, is that the plaintiffs in those cases may
have lacked standing and that therefore this Court erred in reaching the
merits. To put the point lightly, that seems unlikely, and even if our
prior decisions have not expressly embraced a standing theory like the
States’, there is no reason why a conceptually sound theory should be
rejected just because we never previously saw fit to register express ap-
proval.
JUSTICE THOMAS states that “this Court has been inconsistent in de-
scribing whether inseverability is a remedy or merits question.” Ante, at
5. But all that matters for present purposes is that inseverability is not
a standing question. And in all events, the concurrence elsewhere recog-
nizes that severability is a merits question. See ante, at 6 (“[S]tanding-
through-inseverability could only be a valid theory of standing to the ex-
tent it treats inseverability as a merits exercise of statutory interpreta-
tion”); ante, at 5, n. 2 (treating severability as a merits question under
the framework set forth in Steel Co., 523 U. S., at 89).
Finally, JUSTICE THOMAS suggests that a lack of argument on severa-
bility “poses a significant obstacle to review,” ante, at 5, n. 2, but that
flatly ignores that each party—not to mention many amici—extensively
briefed the severability question in this Court.
22 CALIFORNIA v. TEXAS
ALITO, J., dissenting
they have standing based on these reporting obligations in
their brief opposing the petition filed by California and the
other parties that intervened to defend the ACA, see Brief
in Opposition 17, and in their merits brief, see Brief for Re-
spondent/Cross-Petitioner States 20–22. They specifically
identified the consequences of noncompliance to which
these injuries are traceable, id., at 22 (“Employers can be
sanctioned by the IRS for failing to submit adequate infor-
mation. . . . In other words, state respondents are compelled
under threat of government sanction to produce [the]
forms”). And they argued that these obligations are not en-
forceable because they are inseverable from the individual
mandate, id., at 36–46; see also id., at 26–27 (discussing
Alaska Airlines, 480 U. S. 678).
For these reasons, it is clear that the States did not forfeit
the arguments discussed in this dissent.9
* * *
I would hold that the States have demonstrated standing
to seek relief from the ACA provisions that burden them
and that they claim are inseparable from the individual
mandate.
III
Because the state plaintiffs have standing, I proceed to
consider the merits of this lawsuit. That requires assessing
whether the individual mandate is unlawful and whether it
——————
9 If the effect of the Court’s decision is dismissal of this action for lack
of Article III jurisdiction, the States may file a new action. See 18A
C. Wright & A. Miller, Federal Practice and Procedure §4436 (3d ed.
2020) (“The basic rule that dismissal for lack of subject-matter jurisdic-
tion does not preclude a second action . . . is well settled”); Hughes v.
United States, 4 Wall. 232, 237 (1866) (“If the first suit was dismissed for
. . . want of jurisdiction . . . the judgment rendered will prove no bar to
another suit”); Lopez v. Pompeo, 923 F. 3d 444, 447 (CA5 2019). And in
any event, many other parties will have standing to bring such a claim
based on a variety of the ACA’s substantive provisions that are arguably
inseverable from the mandate. Our Affordable Care Act epic may go on.
Cite as: 593 U. S. ____ (2021) 23
ALITO, J., dissenting
is inseverable from the provisions that burden the States.
I begin with the question whether the individual man-
date falls within a power granted to Congress under Article
I of the Constitution. The Constitution’s text and our prec-
edent compel the conclusion that it does not.
The Federal Government “is acknowledged by all to be
one of enumerated powers.” McCulloch v. Maryland, 4
Wheat. 316, 405 (1819) (Marshall, C. J., for the Court). Ar-
ticle I of the Constitution does not give Congress “plenary
legislative power.” Murphy v. National Collegiate Athletic
Assn., 584 U. S. ___, ___ (2018) (slip op., at 15). Instead, it
enumerates certain legislative powers that, while “sizea-
ble,” are not “unlimited.” Ibid.When the constitutionality of the individual mandate
was first challenged in NFIB, the Government’s primary
defense was that it represented a valid exercise of Con-
gress’s power to regulate interstate commerce, but a major-
ity of the Court squarely rejected that argument. See 567
U. S., at 572 (opinion of the Court) (“The Court today holds
that our Constitution protects us from federal regulation
under the Commerce Clause so long as we abstain from the
regulated activity”); see also id., at 561 (opinion of
ROBERTS, C. J.) (“The commerce power thus does not au-
thorize the mandate”); id., at 648 (joint dissent) (“The Act
before us here exceeds federal power . . . in mandating the
purchase of health insurance”). Likewise, a majority of the
Court rejected the Government’s resort to the Necessary
and Proper Clause. See id., at 560 (opinion of ROBERTS,
C. J.); id., at 655 (joint dissent). I agreed with those hold-
ings at the time, and that is still my view. The mandate
cannot be sustained under the Commerce Clause or the
Necessary and Proper Clause, and in this suit, no party
urges us to uphold it on those grounds.
While the NFIB Court rejected the Government’s Com-
merce Clause argument, a majority held that the mandate
represented a lawful exercise of Congress’s taxing power,
24 CALIFORNIA v. TEXAS
ALITO, J., dissenting
see id., at 575 (opinion of ROBERTS, C. J.); see also id., at
574 (opinion of the Court), and the House and state inter-
venors now argue that the mandate can still be sustained
on this ground despite the fact that the “tax” it supposedly
imposes is now set at zero. In NFIB, I did not see how the
mandate’s penalty could be understood as a tax, see id., at
661–669 (joint dissent), but assuming for the sake of argu-
ment that the majority’s understanding was correct at the
time, it is now indefensible.
The Constitution grants Congress the power to “lay and
collect Taxes” “to pay the Debts and provide for the common
Defence and general Welfare of the United States.” Art. I,
§8, cl. 1. In NFIB, the Court made clear that “the essential
feature of any tax” is that it “produces at least some revenue
for the Government.” 567 U. S., at 564 (opinion of the
Court). That limitation follows from the text of the provi-
sion. A tax cannot assist in paying debts or providing for
the general welfare or defense if it raises no money. More-
over, the concept of laying and collecting taxes plainly en-
tails the collection of revenue. At the founding, to “lay” in
the relevant sense meant to “assess; to charge; to impose.”
2 N. Webster, An American Dictionary of the English Lan-
guage (1828) (Webster); see also S. Johnson, A Dictionary
of the English Language (10th ed. 1792) (Johnson) (“To
charge as a payment”). To “collect” meant to “gather money
or revenue from debtors; to demand and receive.” 1 Web-
ster; see also Johnson (“To gather together”). And a “tax”
was a “rate or sum of money” assessed on certain persons
or property. 2 Webster. Read together, this language
means that Congress is empowered to pass laws that raise
revenue.
In recognizing that raising revenue is an “essential fea-
ture” of any exercise of the taxing power, NFIB built on a
substantial line of precedent. See Department of Revenue
of Mont. v. Kurth Ranch, 511 U. S. 767, 778 (1994); United
States v. Kahriger, 345 U. S. 22, 28, and n. 4 (1953); United
Cite as: 593 U. S. ____ (2021) 25
ALITO, J., dissenting
States v. Sanchez, 340 U. S. 42, 44 (1950); Sonzinsky v.
United States, 300 U. S. 506, 513–514 (1937); A. Magnano
Co. v. Hamilton, 292 U. S. 40, 46 (1934). Indeed, the state
intervenors and the House have not identified any statute
ever passed under the taxing power that did not raise reve-
nue. Virginia Office for Protection and Advocacy v. Stewart,
563 U. S. 247, 260 (2011) (“Lack of historical precedent can
indicate a constitutional infirmity . . . ”); see Seila Law, 591
U. S., at ___–___ (slip op., at 18–21); Free Enterprise Fund,
561 U. S., at 505. Given this text, history, and precedent,
it is no longer defensible to argue that the individual man-
date can be construed as a lawful exercise of Congress’s tax-
ing power, for as it now stands, the mandate will never
“produc[e] at least some revenue for the Government.”
NFIB, 567 U. S., at 564 (opinion of the Court). The penalty
for noncompliance is set at 0% and $0. It cannot raise a
cent.
The state intervenors and the House offer several other
arguments to sustain the mandate, but each fails. First,
they suggest that we should interpret the individual man-
date as an exercise of the taxing power based solely on the
precedential effect of the Court’s decision in NFIB. But THE
CHIEF JUSTICE’s opinion for the Court in NFIB construed
the mandate as a tax only because the individual mandate
“produce[d] at least some revenue for the Government.”
Ibid. With that “essential feature” removed, this construc-
tion is foreclosed.
Second, the state intervenors and the House argue that
the Taxing Clause permits Congress to pass a tax and sub-
sequently reduce it to zero. But Congress cannot supple-
ment its powers through the two-step process of passing a
tax and then removing the tax but leaving in place a provi-
sion that is otherwise beyond its enumerated powers.
Third, they analogize the mandate to a delayed or sus-
pended tax—one that raises no revenue now but could do so
in the future. But §5000A, as it currently stands, does not
26 CALIFORNIA v. TEXAS
ALITO, J., dissenting
delay or suspend the collection of revenue. Unless Congress
amends that provision and provides for it to begin raising
revenue at some future date, the “tax” is permanently set
at zero.
The state intervenors offer one final defense of the indi-
vidual mandate: Even if it cannot be sustained under the
Commerce Clause, Taxing Clause, or Necessary and Proper
Clause, they argue that we should interpret the mandate as
a mere precatory statement. In their view, Congress is free
to urge Americans to take actions that it could not constitu-
tionally require, and that is all it has done here.
This argument fails because the individual mandate is
not a precatory statement. The text of the provision is clear.
It states that every covered individual “shall . . . ensure
that the individual, and any dependent of the individual
. . . , is covered under minimum essential coverage . . . .” 26
U. S. C. §5000A(a). “Shall” typically means must, not
should. See Kingdomware Technologies, Inc. v. United
States, 579 U. S. 162, 171–172 (2016). And the text con-
firms that “shall” means “must” by terming the individual
mandate a “[r]equirement to maintain minimum essential
coverage.” §5000A(a); see also NFIB, 567 U. S., at 663 (joint
dissent) (providing other statutory references to the indi-
vidual mandate as a requirement).
Mere precatory provisions, by contrast, typically use the
word “should” to signify that they are not mandatory, e.g.,
4 U. S. C. §8(c) (“The flag should never be carried flat or
horizontally, but always aloft and free”), or make clear that
they convey only the “sense of Congress,” e.g., 15 U. S. C.
§7807 (“It is the sense of Congress that States should enact
the Uniform Athlete Agents Act of 2000”). Congress
adopted those very formulations elsewhere in the ACA, see,
e.g., 42 U. S. C. §292s(d) (“It is the sense of Congress that
funds repaid under the loan program . . . should not be
transferred to the Treasury”), but chose markedly different
language when crafting the individual mandate. Because
Cite as: 593 U. S. ____ (2021) 27
ALITO, J., dissenting
the individual mandate is, in fact, a mandate, it cannot be
considered a mere suggestion to purchase insurance.
For these reasons, I conclude that the individual mandate
exceeds the scope of Congress’s enumerated legislative pow-
ers.
IV
This brings me to the next question: whether the state
plaintiffs have shown that the provisions of the ACA impos-
ing burdens on them are inseparable from the unconstitu-
tional individual mandate. I conclude that those provisions
are inextricably linked to the individual mandate and that
the States have therefore demonstrated on the merits that
those other provisions cannot be enforced against them. Ac-
cordingly, the States are entitled to a judgment providing
that they are not obligated to comply with the ACA provi-
sions that burden them.
All the opinions in NFIB acknowledged the central role of
the individual mandate’s tax or penalty. In brief, the ACA
aimed to achieve “near-universal” health-care coverage. 42
U. S. C. §18091(2)(D). A major obstacle was the inability of
many individuals to obtain adequate insurance due to the
expensive medical care they were likely to require. To ad-
dress that problem, the ACA included “guaranteed issue”
and “community rating” provisions. These key provisions
prohibit insurance companies from denying coverage or
charging higher premiums to the individuals described
above. And to compensate for the financial impact of these
provisions on insurers, the individual mandate required the
purchase of insurance by persons whose predicted medical
expenses were substantially lower than the premiums they
would pay. See NFIB, 567 U. S., at 547–548 (opinion of
ROBERTS, C. J.); id., at 595–599 (opinion of Ginsburg, J.);
id., at 648–651, 691–696 (joint dissent); see also King, 576
U. S., at 482 (“Congress found that the guaranteed issue
28 CALIFORNIA v. TEXAS
ALITO, J., dissenting
and community rating requirements would not work with-
out the” individual mandate).
Thus, the guaranteed-issue and community-rating provi-
sions were crucial to the success of the ACA scheme, and a
tax or penalty for noncompliance with the individual man-
date was essential to the ACA’s distribution of risks and
burdens. The ACA contains an express finding on exactly
that point:
“The requirement [i.e., the individual mandate] is es-
sential to creating effective health insurance markets
in which improved health insurance products that are
guaranteed issue and do not exclude coverage of pre-
existing conditions can be sold.” 42 U. S. C.
§18091(2)(I) (emphasis added).
See also NFIB, 567 U. S., at 694–696 (joint dissent) (de-
scribing other statutory provisions declaring that the indi-
vidual mandate works “together” with the rest of the ACA).
In NFIB, the Government agreed that the individual
mandate was inextricably related to those crucial provi-
sions. See id., at 650 (citing Brief for Petitioners, O. T.
2011, No. 11–398, p. 24). And so did Justice Ginsburg’s
opinion. See 567 U. S., at 597 (“[T]hese two provisions [i.e.,
the guaranteed-issue and community-rating provisions],
Congress comprehended, could not work effectively unless
individuals were given a powerful incentive to obtain insur-
ance”); see also ibid. (quoting congressional testimony that
the insurance market would be “ ‘drive[n] . . . into extinc-
tion’ ” without “ ‘a mandate on individual[s] to be insured’ ”).
Recognizing this relationship, the joint dissent, after
finding that the individual mandate and Medicaid expan-
sion provision were unconstitutional, concluded that other
provisions of the ACA could not be enforced. We analyzed
this question under what we described as the Court’s “ ‘well
established’ ” two-part test. Id., at 692 (joint dissent) (quot-
ing Alaska Airlines, 480 U. S., at 684).
Cite as: 593 U. S. ____ (2021) 29
ALITO, J., dissenting
Under this test, the first question was whether the re-
mainder of the ACA would “operate in the manner Congress
intended” without the unconstitutional provisions. NFIB,
567 U. S., at 692. And to satisfy this requirement, we ex-
plained, it was not enough that the remaining provisions
could operate by themselves “in some coherent way.” Ibid.The question, instead, was whether those provisions would
operate as Congress wrote them. Ibid. If this requirement
was met, the second part of the test asked whether “Con-
gress would have enacted [the other provisions] standing
alone and without the unconstitutional portion.” Id., at
693; see id., at 692–694.
Applying this test, we concluded that, without the uncon-
stitutional provisions, neither the other ACA provisions we
labeled “major” nor many of those we described as “minor”
could operate as Congress intended. Id., at 697–705. And
we opined that Congress would not have enacted the re-
maining minor provisions by themselves. Id., at 704–705.
We noted that they had been adopted as part of a complex
package deal and that “[t]here [was] no reason to believe
that Congress would have enacted them independently.”
Id., at 705.
Nothing that has happened since that decision calls for a
different conclusion now. It is certainly true that the repeal
of the tax or penalty has not caused the collapse of the en-
tire ACA apparatus, but the critical question under the
framework applied in the NFIB dissent is not whether the
ACA could operate in some way without the individual
mandate but whether it could operate in anything like the
manner Congress designed. The answer to that question is
clear. When the tax or penalty was collected, costs were
shifted from individuals previously denied coverage due to
their medical conditions and placed on others who pur-
chased insurance only because the failure to do so was
taxed or penalized. The repeal of the tax or penalty has not
made the costs of the guaranteed-issue and community-
30 CALIFORNIA v. TEXAS
ALITO, J., dissenting
rating requirements disappear. Those costs have obviously
been shifted to others—in all likelihood to individuals who
now pay higher premiums or face higher deductibles or to
the taxpayers. This shift fundamentally changed the oper-
ation of the scheme Congress adopted.
The repeal of the tax or penalty also provides no reason
to doubt our previous conclusion about Congress’s intent.
While the 2017 Act repealed the tax or penalty, it did not
alter the statutory finding noted above, and the 2017 Act
cannot plausibly be viewed as the manifestation of a con-
gressional intent to preserve the ACA in altered form. The
2017 Act would not have passed the House without the
votes of the Members who had voted to scrap the ACA just
a few months earlier,10 and the repeal of the tax or penalty,
which they obviously found particularly offensive, was their
fallback option. They eliminated the tax or penalty and left
the chips to fall as they might. Thus, under the reasoning
of the NFIB dissent, the provisions burdening the States
are inseverable from the individual mandate.
The same result follows under the new approach to ques-
tions of partial unconstitutionality that some Members of
the Court have adopted in the years since NFIB. They have
suggested the severability analysis should track ordinary
rules of statutory interpretation. Seila Law, 591 U. S., at
___, ___–___ (THOMAS, J., concurring in part and dissenting
in part) (slip op., at 16, 20–21). In their view, Congress de-
cides whether the provisions it enacts are linked to one an-
other or not, and the answer lies in the ordinary tools of
statutory construction. And everything the NFIB dissent-
ers said points to the same conclusion as a matter of the
ACA’s text, history, and structure. The relevant provisions
were passed as a comprehensive exercise of Congress’s
——————
10 Compare 163 Cong. Rec. H4171 (May 4, 2017) (passage of the Amer-
ican Health Care Act, H. R. 1628), with id., at H10312 (Dec. 20, 2017)
(passage of the Tax Cuts and Jobs Act, H. R. 1).
Cite as: 593 U. S. ____ (2021) 31
ALITO, J., dissenting
Commerce Clause and (arguably) Taxing Clause powers.
Those powers cannot justify the individual mandate. The
statutory text says the individual mandate is “essential” to
the overall scheme, 42 U. S. C. §18091(2)(I), and it repeat-
edly states that the various provisions work “together,”
NFIB, 567 U. S., at 694–696 (joint dissent). It does not mat-
ter that this language appears in a section entitled “find-
ings” as opposed to a section entitled “severability.” Con-
gress can link distinct provisions in any number of ways, on
this view, so long as it does so in the text. The broader stat-
utory history and structure, moreover, reinforce that con-
clusion. The NFIB dissent explained how the ACA’s provi-
sions work in tandem to alter the insurance market. 567
U. S., at 691–706. Here, the individual mandate requires
individuals to obtain “minimum essential coverage.” 26
U. S. C. §5000A(f ). The reporting requirements, in turn,
implement the mandate—indeed, they explicitly cross-
reference §5000A—by requiring employers to provide infor-
mation about such coverage. §§6055(e), 6056(b)(2)(B). And
the adult-children coverage requirement works as part of a
cohesive set of insurance reforms central to the ACA’s over-
all structure, which turns on healthy persons’ entry into the
market via the individual mandate. See 42 U. S. C.
§300gg–14(a). The individual mandate is thus inseverable
from the provisions burdening the States under either ap-
proach to severability.
Having determined that the individual mandate is (1) un-
lawful and (2) inseverable from the provisions burdening
the state plaintiffs, the final question is what to do about it.
The answer largely flows from everything I have already
said above. Relief in a case runs against parties, not
against statutes. Supra, at 9–10. And provisions that are
inseverable from unconstitutional features of a statute can-
not be enforced. Supra, at 15–20. No matter how one ap-
proaches the question, then, the answer is clear: Because
the mandate is unlawful and because the injury-causing
32 CALIFORNIA v. TEXAS
ALITO, J., dissenting
provisions are inextricably linked to the mandate, the fed-
eral defendants cannot enforce those provisions against the
state plaintiffs. And the state plaintiffs are entitled to a
judgment providing as much. That answer comports with
the reasoning of the NFIB joint dissent, which made clear
that the state plaintiffs should not be required to comply
with the provisions of the ACA that burden them. See 567
U. S., at 697–707. And it comports with the remedial ap-
proach others have advocated in recent years. See Murphy,
584 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3);
Seila Law, 591 U. S., at ___ (opinion of THOMAS, J.) (slip op.,
at 24); Barr v. American Assn. of Political Consultants, Inc.,
591 U. S. ___, ___ (2020) (GORSUCH, J., concurring in judg-
ment in part and dissenting in part) (slip op., at 5). Thus,
under either the framework used in the NFIB joint dissent
or the alternative framework advocated in subsequent
cases, the state plaintiffs are entitled to relief freeing them
from compliance with the ACA provisions that burden
them.
* * *
No one can fail to be impressed by the lengths to which
this Court has been willing to go to defend the ACA against
all threats. A penalty is a tax. The United States is a State.
And 18 States who bear costly burdens under the ACA can-
not even get a foot in the door to raise a constitutional chal-
lenge. So a tax that does not tax is allowed to stand and
support one of the biggest Government programs in our Na-
tion’s history. Fans of judicial inventiveness will applaud
once again.
But I must respectfully dissent.